Study On Cross-border Enforcement Of Interim Measures In International Commercial Arbitration

Cross-border enforcement of Interim Measures refers to the enforcement of Interim Measures issued by arbitral tribunals or courts in countries other than the place of arbitration in international commercial arbitration.Because international commercial arbitration often involves parties from different countries and regions,and the country where the arbitral award is located may be a neutral country unrelated to the parties,the parties may not have any property in the place of arbitration,while the arbitral tribunal has a period of time before the award is made and the parties may transfer property or destroy evidence during this period,so that the arbitral award will not be awarded.It is very important and meaningful for interim measures to be implemented abroad because they can be reasonably made or are difficult to implement after they are made.Nowadays,with the increasing number of international trade disputes,international commercial arbitration has won the favor of the parties because of its voluntariness,professionalism,flexibility,independence,economy,efficiency and confidentiality.However,if the Interim Measures are not fully implemented,it is possible for the arbitral tribunal to make unfair decisions without sufficient evidence,and it is also very likely that the final arbitral award will be made.It can not be effectively implemented,which is extremely detrimental to the protection of the legitimate rights and interests of the parties.In the absence of uniform international conventions to regulate thecross-border enforcement of interim measures,this paper makes a case study of the New York Convention and the Model Law on International Commercial Arbitration(hereinafter referred to as the Model Law)and the Arrangement on Mutual Assistance in the Preservation of Arbitration Procedures between the Courts of the Mainland and the Hong Kong Special Administrative Region(hereinafter referred to as the Arrangement)promulgated on 2 April 2019.The specific provisions of the enforcement system of interim measures are analyzed,and suggestions for improving the cross-border enforcement of arbitration interim measures are put forward.The research of this paper is as follows: the background of this paper,the proposition of the problem,the significance and value of studying this topic from the perspective of theory,practice and legislation,the literature review part clarifies the current situation of this study at home and abroad,the two research methods of this paper,that is,literature review research and comparative study,and the innovation and shortcomings of this paper.The first chapter is an overview of the cross-border enforcement of Interim Measures in international commercial arbitration.The first section of this chapter mainly introduces the concept,types,characteristics of Interim Measures and the role and significance of the implementation of Interim Measures abroad.Section II analyses three problems encountered in the cross-border implementation of interim measures.One is the lack of legal regulation on the cross-border implementation of interim measures.The other is that there is no international convention to regulate the cross-border implementation of interim measures.The third is that very few countries have translated the Model Law into the application of domestic law.The first chapter mainly answers what is the interim measure,what is the meaning of its cross-border implementation,and what are the obstacles to its cross-border implementation.Chapter ?: Applicability analysis of the New York Convention.Theapplicability of the New York Convention is analyzed from two aspects: theory and practice,affirmation and negation.This chapter considers that the requirements of the New York Convention for "adjudication" are binding but not definite and final.In the absence of relevant legislation,the Convention can be applied.It is undoubtedly the best way to solve the problem of cross-border implementation of Interim Measures by applying the New York Convention at present.This chapter mainly proposes that in the absence of a unified international convention to regulate the cross-border implementation of interim measures,the New York Convention should be applied as the basis for implementation.Chapter ?: Regulation analysis of Interim Measures under the Model Law.The first section of this chapter interprets 17 articles of the Model Law and concludes the regulation of provisional measures in the Model Law.Section II is based on the legislation of Germany,Britain and Hong Kong,China.Through the analysis of the legislation of Germany,Britain and Hong Kong,China on the overseas implementation of interim measures,it is proposed that in the absence of international conventions to solve the problem of the cross-border implementation of interim measures,the application of the Model Law into domestic law is a way to solve the problem of the cross-border implementation of interim measures through unilateral regulation.Chapter ? Analysis of Cross-border Implementation of Interim Measures under the Arrangement.The first section of this chapter interprets the Arrangement,sums up the regulations on the cross-border enforcement of Interim Measures under the Arrangement,the significance of the Arrangement for the cross-border enforcement of Interim Measures in international commercial arbitration and the situation that the Interim Measures in the Mainland arbitration can not be implemented although the cross-border enforcement of Interim Measures in the Arrangement has been alleviated to some extent.Section2 puts forward some suggestions to solve the problem of cross-borderenforcement of interim arbitration measures in the Mainland,although the Arrangement alleviates the problem of cross-border enforcement of interim arbitration measures in the Mainland,there are still other situations that are difficult to implement.