Recognition And Enforcement Of Interim Measures Of Pr Otection Under International Arbitration

Interim measures of protection, which in the relevant national legislation or international arbitration legislation, arbitration rules of arbitration institute also known as interim measures, interim or conservatory or interim measures, are indicated to ensure that the final award of the subject matter will not be frustrated by acts of malicious party and have been recognized as a general principle of law in different countries. Interim measures of protection is a crucial procedural issue in international commercial arbitration, due to the relief function of interim measures of protection, the arbitral tribunal has the jurisdiction to grant interim measures of protection against misconduct of malicious parties in many countries, in order to prevent the transformation of property or the destruction of the evidence. However, on the stage of international commercial arbitration, the attitudes to the enforceability of the orders or awards granted by the arbitral tribunal are different in each country’s legislations and practices, especially in the enforceability of the interim measures of protection obtained outside the country. The issue of the enforceability of interim measures of protection also caused the interest of the United Nations Commission on International Trade Law, the United Nations Commission on International Trade Law(UNCITRAL) established a special working group(Working Group II) to discuss and draft Article 17 of the UNCITRAL Model Law, eventually, in 2006, on the 39 th General Assembly of the United Nations Commission on International Trade Law, the Commission passed the amendment proposal of the Working Group, and added as the 2006 amendment to the "UNCITRAL Model Law" which was issued in 1985. Although the "UNCITRAL Model Law" is not universally binding, the Amendment has made great contributions to the uniformity of the international law and provided a valuable blueprint to national legislation reform, including China. As members of "UNCITRAL Model Law”, the creative practice models of Netherlands, UK and Germany on the reorganization and enforcement of interim measures of protection in their domestic judicial system also provide a valuable reference experience to China. In summary, this article focus on the recognition and enforcement of arbitral tribunal granted interim measures of protection, using comparative and empirical analysis method, and examining the different arbitration legislation, arbitration rules and judicial practice, intended to provide personal proposals on arbitration legislation from the view of construction and function developing. This paper is divided into three parts, apart from the preamble and the conclusion, the content of each chapter is as follows:The first chapter illustrates general problems about the interim, including the definition of interim measures of protection, as well as the difference between the interim measure and other similar concepts; in addition, explains the special legal nature of interim measures of protection and how it will affect the reorganization and enforceability of the interim measures of protection in different countries.The second chapter researches on the different practice models on recognition and enforcement of interim measures of protection in different countries where the award or order is granted or obtained in foreign countries. First, the amendment made by UNCITRAL made up the legislative vacancy in the field of interim measures of protection. Second, many countries have explored a suitable practice models on the reorganization and enforcement of interim measures of protection, and the practice models of Netherlands, UK and German are the quintessence, which provide valuable example to the reform of China. Third, since the unavailability of New York Convention when enforce the interim measures of protection in country outside the arbitration site, a new resolution showed in practice.The third chapter discusses the current status quo of China’s recognition and implementation of the interim measures of protection. From the perspective that legislation and practice of arbitration is weak in our country, and with the reference from the development of UNCITRAL Law and practices of other countries, this article tries to provide some solution.The last part is the summary of the whole article.