Study On Cross-border Enforcement Of Interim Measures Ordered By Emergency Arbitrators In International Commercial Arbitration

Interim measures in international commercial arbitration refer to that the arbitral tribunal or emergency arbitrators decide whether or not certain remedial measures need to be granted according to the corresponding standards before the final award is made according to the applicable arbitration rules and the parties' applications.The purpose of interim measures is to protect the legitimate rights and interests of one or both parties to the dispute before the final award is made.In 1976,the United Nations Commission on International Trade Law added rules regarding tribunal-ordered interim measures in its arbitration rules.Since 1998,tribunal-ordered interim measures have become more common and valued by the parties.As the use rate of arbitration interim measures continues to increase,the emergency arbitrator system has emerged as a means of preservation and relief before the constitution of arbitral tribunal.In addition to the court-ordered interim or preservation measures,before the arbitral tribunal is constituted,the parties can decide whether to commence the emergency arbitrator procedure according to the applicable arbitration rules.However,corresponding problems have also emerged,the key of which is the problem of cross-border enforcement of emergency arbitrators' decisions.Discussions on cross-border enforcement have traditionally focused on the analysis of the “awards” in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards(hereinafter referred to as the “New York Convention”).Scholars and judicial practitioners have attempted to interpret interim measures as in line with the concept of arbitral awards in the New York Convention.It is true that the drafters of the 1958 New York Convention may not have taken this into consideration,so the New York Convention itself does not contain any words referring to interim measures,but on the other hand,there is also no reason to conclude that the drafters intentionally exclude interim measures,which is also a view generally accepted by most scholars who interpret the scope of the New York Convention.The main issue that this article aims to address is whether and how multinational cooperation for cross-border enforcement of interim measures ordered by emergency arbitrators is needed and is divided into three chapters.Chapter one first defines the relevant concepts involved in this topic,including emergency arbitrator procedures,interim measures,and cross-border enforcement.The data shows the application of the emergency arbitrator procedure and the enforcement of the interim measures ordered by it;then describe the status of cross-border enforcement of emergency reliefs in other jurisdiction,and point out that the main problem interim measures facing is lack of multi-national cooperation mechanisms;finally demonstrate the necessity of multinational cooperation mechanisms.The second chapter discusses the feasibility and existing problems of the multinational cooperation mechanism for the cross-border enforcement of interim measures based on theory and practice.First,it discusses the applicability of New York Convention which is most controversial,mainly focus on the definition,the form,and the finality of interim measures.It was proposed that the application of the New York Convention without changing the current contents was unrealistic.If we arbitrarily apply the New York Convention to the enforcement of interim measures,there will be contradiction with the laws of most of the contracting states,which will lead to more unnecessary conflicts.Secondly,it analyzes the conditions for the cross-border enforcement,and analyzes the effect that the authority of the emergency arbitrator have on cross-border enforcement,combining with the case of Beijing Arbitration Association.It was proposed that if the parties agreed to apply to the emergency arbitrator procedure for interim relief,but the law of the seat ofarbitration expressly stipulates that the emergency arbitrator does not have the authority to order,then it is a violation of the compulsory provisions of the law of the seat of arbitration and is one of the cases where recognition and enforcement are not allowed.Chapter three gives suggestions for improving the multinational cooperation mechanism.First,in the territory of the contracting states that already has relevant provisions on the enforcement of interim measures,the New York Convention can be appropriately used at present,and the New York Convention should be revised and updated in accordance with the provisions regarding tribunal-ordered interim measures in the Model Law on International Commercial Arbitration(hereinafter referred to as the "Model Law").In addition to the New York Convention,two countries can also sign bilateral arbitration treaties to make arrangements for mutual assistance in the enforcement of interim measures for arbitration.Chapter four focuses on the situation in China,current law systems does not provide parties in foreign arbitration the opportunity to apply to the court for the enforcement of emergency relief,or directly apply to the court for conservatory measures,and further proposes the corresponding suggestions,including the transformation of relationship between courts and arbitral tribunals,as well as the improvement of emergency arbitrators rules of China-based arbitration commission.