On The Paths Of Extraterritorial Enforcement Of Interim Measures In International Commercial Arbitration

With the development of global economic exchanges,international commercial trade activities are deepening rapidly,and the transnational disputes between parties are also increasing.As an important way to solve disputes,international commercial arbitration is favored by commercial subjects because of its neutrality and efficiency.Before the arbitration award is made,in order to ensure the smooth progress of the arbitration procedure and protect the rights and interests of the parties,and prevent the parties from taking measures that affect the subsequent hearing of the arbitration,such as early transfer of property or destruction of evidence,provisional measures emerge as the times require.The interim measures stipulated in the model law on International Commercial Arbitration of the United Nations Commission on International Trade Law(2006 Amendment)(hereinafter referred to as the "model law")mainly include four forms of relief,namely,status quo maintenance,act preservation,property preservation and evidence preservation.As a temporary emergency measure,emergency is the precondition of these temporary measures.Generally speaking,the setting of temporary miscarriage of justice is a relief way to protect the legitimate rights and interests of the parties to the dispute,so as to prevent them from suffering adverse damage or influence before making the ruling,so as to ensure the smooth implementation of the final ruling.In the practice of arbitration,because the property and evidence involved in the dispute are often distributed in different countries and regions,if the interim measures applied for by the parties need to be enforced in countries or regions other than the country where the arbitration place belongs,the problem of how to enforce the interim measures outside the region arises.But at present,there is no unified regulation on this issue in the international community,and there is no clear implementation mechanism.The courts in the place of enforcement mostly decide how to implement the extraterritorial interim measures according to the domestic arbitration law.Therefore,in practice,there are great uncertainties and difficulties in the extraterritorial implementation path of the interim measures.This mainly comes from the following aspects:firstly,due to the lack of enforcement,the arbitration tribunal mainly relies on the credibility and voluntary performance of the parties to implement the interim measures.Although the binding force of interim measures can be seen in the relevant provisions of the model law,the arbitration tribunal and the parties can apply to the court with jurisdiction for the enforcement of interim measures,there is no further provision for the parties who do not take the initiative to perform.Therefore,once the parties do not take the initiative to perform the interim measures,whether they can be implemented will face great uncertainty;Secondly,the conflict of domestic law is another dilemma of extraterritorial implementation of interim measures.This is because there are differences in the provisions of Interim Measures in the domestic laws of various countries,such as the types of Interim Measures and the issuing subject.Therefore,in the face of an extraterritorial interim measure which is different from the provisions of domestic law,whether and how to implement it by the court in the place of execution are facing disputes;Finally,the most controversial dilemma in the implementation is whether the interim measures can be implemented extraterritorially according to the New York Convention《The Convention itself focuses on the recognition and enforcement of "arbitral awards",and whether "Interim Measures" are included has not been clearly stated,so there are different views in the theoretical circle and arbitration practice.The opponents hold that interim measures deal with procedural matters of the case rather than substantive issues,so they do not have the characteristics of finality and can not be regarded as the enforcement of arbitral awards by invoking the Convention.However,supporters believe that interim measures can be regarded as the enforcement of arbitral awards in accordance with the Convention,because the essential purpose of interim measures is to resolve disputes.In some cases,it touches the substantive relationship between the parties,which not only plays a decisive role in the distribution of rights and obligations of the parties,but also relates to the smooth implementation of subsequent trials and final awards,Therefore,it is binding and final.In the face of the above difficulties encountered in the extraterritorial implementation of interim measures,this paper will explore a reasonable and feasible extraterritorial implementation path of interim measures.In view of the dilemma that the arbitral tribunal has no enforcement power,we can improve its enforcement power through the assistance of the court in the place of enforcement,which is a common practice in most countries in the world.For example,according to Article 183 of the Swiss Federal Code of private international law,if the parties refuse to comply with the Interim Measures voluntarily,even if the place of arbitration is in a country or region other than Switzerland,the arbitration tribunal has the right to request the Swiss court for assistance in the implementation of the interim measures.The assistance of the court can improve the enforcement of interim measures to a great extent.In addition,punitive measures can be set up to deter and punish the parties who do not actively perform the interim measures,so as to improve the extraterritorial enforcement of the interim measures.For example,an arbitration tribunal may impose economic sanctions on a party who delays the performance of an interim measure and impose a fine according to the number of days of delay.For example,the enforcement of interim measures can be carried out by arbitration or court judgment,or the enforcement of interim measures can be carried out by the court in the place of enforcement in the form prescribed by domestic law;It is reasonable to use the New York Convention as the basis of extraterritorial enforcement of interim measures,and it is helpful to the flexible settlement of disputes.All of the above are the exploration of the path of extraterritorial implementation of interim measures.