The Research Of The Emergency Tribunal System Of The Pilot Trade Zone

With the advantages, the arbitration get the trust and praise of the parties of the international commercial trade, and there is a complete set of international commercial arbitration system has been established. Interim measures is a crucial procedural problem in international commercial arbitration, it is an indispensable means to protect the legitimate rights and interests of the parties and realize the arbitration authority and the predictability of the arbitration’s results. However, between the arbitration commission acceptting the case and the arbitration tribunal formmed, the parties can only apply for interim measures to the court, which on one hand, against the will of the parties, on the other hand, the attitide of the domestic court for interim measures will lead to the arbitration confidentiality lossing, the the arbitration cost increasing, and complex problems of the jurisdiction, etc. In the face of this problem, the international commercial arbitration commissions, presented by SIAC, ACICA, SCC, ICC, take the lead in establishing the emergency arbitrator. The emergency arbitrator in new rules of the international chamber of commerce embodies the respect for autonomy, control power abuse effectively and the value orientation of the equal protection,and this has gradually become the mainstream in the field of international commercial arbitration system, and plays an important role in the rights and interests protection. In 2014, the China(Shanghai) Pilot Free Trade Zone Arbitration Rules established ‘emergency tribunal’. The most important significance of the emergency tribunal is that before constituting the arbitral tribunal, the parties can apply for the interim measureas to the emergency tribunal instead of the court, so as to safeguard the rights of the parties in the arbitration claims. Interim measures made by emergency tribunal plays an important role. But there is no matching, impeccable mechanism within the scope of the whole world, which greatly limits the effect of the emergency tribunal. This paper will use theoretical analysis method and comparative analysis method, with systematically analysis, to definite the poblem and difficulties in executing, and put forward my suggestion.As an whole new system, the operational mechanism of emergency tribunal isn’t perfect, but The China(Shanghai) Pilot Free Trade Zone Arbitration Rules still made a bold but cautious rules. In international commercial arbitration, whether the emergency arbitrator applies, the key is whether the arbitration rules set the emergency arbitrator system and arbitration domestic legislation has not made the opposite regulation. On this basis, the emergency tribunal made further regulation: according to the relative regulation, after the arbitration cases accepted and before the fomation of the arbitration tribunal, the parties could submmit to the arbitration commission to request the emergency tribunal. Emergency tribunal is independent from the arbitration tribunal, so it must have a specific set of power to make the interim measures executable. At the same time, it is important to limit the powerof the emergency tribunal, so that it can serve better service to international commercial arbitration, and safeguard the legitimate rights and the interests of the parties. The emergency tribunal is to solve the problem of interim measures, which are made between the arbitration commission acceptting the case and the arbitration tribunal formmed, so it is usually urgent. And the emergency tribunal is to remedy the inadequacy of interim measures apply to the court. Therefore, the emergency of the arbitral award should make within strict time requirements, to meet the parties’ demand. For the system of emergency tribunal, the most important is the interim measures it made can be executed effectively, or there’s no need for this system to exist. In addition, interim measures and the arbitral award are just as importnt as or even more important, this is because certain types of interim measure, such as interim measures that can ensure the arbitral award implement effectively, related to the execution of the arbitral award. However, there’s not so many relevant regulations.Emergency tribunal was just born in China, and it’s survival environment is very bad, national legislation doesn’t admit the arbitral tribunal has the power of issue interim measures, so it’s enforcement is impossible. According to the current applicable cases, the biggest problem emergency tribunal facing is enforcement problems. For the parties, if the applicant doesn’t wish to perform an emergency decision and emergency decision can not be able to force, then the decision will be nonsense. In terms of real, the implementation of emergency decision need the support of the New York Convention. Unfortunately, the New York Convention didn’t make a clear regulation of emergency decision execution. Interms of domain implementation, the implementation of emergency decision need the support of a country’s arbitration law. But most countries have not yet set regulations at present, so here I’ll put forward my suggestions. First of all, our country should establish the “double track” as soon as possible, this can give the arbitration tribunal the power to issue the interim measures. Secondly, we should set up the mechanism of checks and balances of program operating mechanism, regulating the provisions of the arbitrators to avoid and limiting effectiveness of emergency decision measures, any matter, dispute emergency tribunal defined, shall be decided that trere’s no restriction to the arbitral tribunal, and the arbitration tribunal may modify, terminate or cancel the emergency decision made by the arbitral tribunal, for any parties request for the emergency tribunal, are all ruled by the arbitral tribunal. Finally, we should establish efficient enforcement mechanism of interim measures, and if one party doesn’t comply with the decision after receiving the decision, then in the formal arbitration, he will be at a disadvantage on this issue. For the issue of the interim measures execution of emergency tribunal, we can adopt the way of executing the interim measures of arbitral tribunal. We can learn other countries that expand the range of New York Convention to the interim measures; and we can called on the international community to develop a globle international convention like New York Convention. In order to promote the development of international commercial arbitration, the different countries and regions can consult to conclude bilateral or multilateral agreements.Looking at current arbitration rules, in the international commercial arbitration, only after the arbitration tribunal formally established the parties can apply interim measures to the arbitration tribunal, but because the international commercial arbitration is international, the arbitration cases are always complex, and the arbitrators’ nationality have diversity, arbitration are institutional and bureaucratic, so the arbitration tribunal establish often requires more time. Emergency system’s biggest significance lies in the fact that it can protect the parties’ proposal realizing to the maximum limit. This system makes up for the gap of promoting interim measures before the arbitral tribunal form formally, it’s good to protect the both parties’ rights, and it’s good for the China’s arbitral system integrated with the internation. Of course, there is no denying that there are many defects in the emergency tribunal system, just like other new system, the biggest defect is the forcement problem of the interim measures’ decision made by emergency tribunal decided. It’s important to pay attention to this problem, then the emergency tribunal system will be across the country.