Study On The Provisional Measures In The International Arbitration

In the conflict solving process of the international civil controversy, the arbitration has become the main solution due to its convenience, neutral and flexible.The institution of provisional measure has a huge extent of application in the internationalcommercial arbitration procedure. It aims at protecting the smooth of it and the effective implementation of the judgment. By avoiding one party to transfer the property or destroy the testimony to protect the right of the other party. And it will make the arbitration more fair and executive.Across the countries, the civil procedural law and the related arbitration law, and some institutional legislation and rules have regulated the provisional measure in the universal commercial arbitration, but they could not reach a compromise. Among which, the right of release the provisional measure and the abroad execution still remain hindered, and contain big controversy in both theory and practice. Clause 17 of the<Model Law on International Commercial Arbitration> has been too simple for the legislation of the provisional measure. So, in July, 2006, the UNCITRAL had reviewed this clause by expanding to a chapter, using five sections to detailed clarify it. And the UNCITRAL passed the amendment of the Clause 17 of the<Model Law on International Commercial Arbitration>, to make it more suitable for the development and practice of the international commercial arbitration.Our country had changed the provisional measure during the reviewing process of < civil procedure law> in 2012. 1、It added a rule of “Applying for the property preservation measures to the court before the arbitration”;2、It added a rule of “Applying for the testimony preservation measures to the court before the arbitration”;3、It added a rule of “behavior preservation measure”, thus expanded the scope of the provisional measure to a large extent. This is a huge progress of our arbitration rules, it will either demonstrate the integrity of the procedural law, or protect the interest of the parties. After the revise of the < civil procedure law>, many related arbitration institution changed the arbitration rules. This would make the application of its own rules be more identified, and the application of the provisional measure in the international arbitration be more convenient and effective. I will discuss it in the article.Specifically, <China(Shanghai)Free Trade Arbitration Commission Arbitration Rules>(2014) has ruled it in the fourth chapter particularly. Without disobeying the < civil procedure law>, it made a huge progress, which demonstrated our emphasis on the international arbitration and the new development in China. It also satisfied the request of the international and legalized free trade zone to solve the problem more convenient, and fixed the new feature of the free trade zone.In view of the importance of the provisional measure and the clutch impact on the result of the arbitration, and the insufficient supporting rules in our current laws, this article emphasizes on the introduction and the analysis of the advanced rule of it abroad, and the disadvantage of our current laws. Under the situation of the releasing of the related regulations of the free trade zone, this article analyzes and raises the improvement suggestion towards the problems of the provisional measure release and execute in our country, hoping it will be helpful for the development and the fulfill of our international arbitration institution.