A Study On Interim Measures In International Commercial Arbitration

Interim measures in international commercial arbitration are usually classified into three: preservation of evidence, property and act. It is of great significance to give interim measures orders and execute such orders in protecting parties’ rights and interests, making the arbitration process efficient. There are two legislation models in respect of the power to give interim measures orders or awards. The power belongs to court exclusively or belongs to both court and arbitral tribunal. The latter is adopted by most countries and is more suitable. The power to give such orders or awards belonging to arbitral tribunal shall be authorized by laws, arbitration rules, and parties’ agreement. Applications for such orders could be filed to the court before petitioning the arbitration committee or to the arbitral tribunal after it is constituted. Recently, emergency arbitration procedure, which is aimed to serve the application for interim measures orders filed between the time when arbitration committee accepted the petition and the time before the arbitral tribunal is constituted, has been attached to many arbitration rules. So far, interim measures can not be executed through New York Convention. There is rare domestic law providing that such orders made by foreign arbitral tribunal could be executed. However, it is a possible way to solve the problem by explaining the New York Convention further in order to make the Convention cover the interim measures orders. The Civil Procedure Law amended in 2012 provides the preservation of act and its new judicial interpretation provides the execution of interim measures orders. Some arbitration rules of Chinese arbitration committees were also amended in the part of interim measures to be adapted to the new changes of some other rules.