Research On Extraterritorial Enforcement Of Interim Measures In International Commercial Arbitration

Due to the high efficiency and confidentiality of the commercial arbitration procedure,it has become the most widely used alternative dispute settlement method among the parties to settle disputes.Generally speaking,international commercial arbitration cases are more complicated,and the trial cycle of cases is also relatively long.During the trial,the malicious party may make the act of transferring property and destroying the evidence,in order to prevent the occurrence of this kind of situation,the system of interim measures to guarantee the legitimate rights and interests of the other party came into being.However,compared with a sound system of arbitration awards,the system of interim measures is not perfect,especially with regard to the extraterritorial implementation of interim measures.There are great differences in legislative attitudes and regulations among countries,so there are many difficulties in the implementation of interim measures outside the country.This paper based on the basic concept of interim measures,sets out from the angle of legislation and practice.On the basis of analyzing the arbitration legislation and rules,this paper analyzes the cases and probes into the current system of interim measures in China,and puts forward its own suggestions accordingly.This paper is divided into four parts,with four issues,which is why the court to execute the provisional measures outside the arbitration tribunal or the court ruling or order interim measures to face what extraterritorial enforcement difficulties in practice,temporary measures in the current context is how to get executed and China will make temporary measures get the efficient execution.The first part is an introduction to the basic content of interim measures.The second part is to discuss the conflict of the extraterritorial application of interim measures.Focusing on the question of the applicability of the New York Convention.In international commercial arbitration,the parties generally choose to arbitrate in a neutral third country,so that the place of arbitration is not consistent with the place of enforcement.In addition,countries have different views on the legal attributes of interim measures,and naturally there are many differences in the provisions relating to interim measures,which also leads to the thorny issue of the extraterritorial implementation of interim measures.The lack of international conventions makes the implementation of interim measures more complex,so some scholars think that the New York Convention can solve this problem,but this view is controversial.In practice,the attitudes of courts in different countries are also different.Combining with the theory and practice of scholars this paper holds that the Convention can be applied in the absence of relevant legislation at present.The third part is mainly about the analysis of the third question.That is,in the absence of sound laws,the enforcement of interim measures has become a bottleneck restricting the development of international commercial arbitration.In order to better solve this problem,UNCITRAL established the second working Group to promote the development of international commercial arbitration.To amend the Model Law,the new Model Law was adopted in 2006.Although the Model Law is not enforceable,it provides a blueprint for national legislation and is supported and recognized by many countries,Australia,Singapore,Germany,Hong Kong and other countries or regions have already modified their arbitration laws in light of the Model Law.They have also stipulated a system of enforcement of interim measures according to their specific national conditions.In summary,there are mainly models of court assistance,enforcement of awards and execution of judgments.By analyzing the practices of these countries,this paper hopes to find out the channels to solve the problem.The fourth part mainly starts from the current arbitration legislation of our country,and analyzes the current legislative situation and defects of the implementation of interim measures in our country,and combine these problems to put forward their own suggestions.