Study On Interim Measures Of International Commercial Arbitration

As socialism with Chinese characteristics enters a new era and a new pattern of comprehensive opening up is gradually taking shape,China is unswervingly promoting economic globalization,accelerating the convergence with internationally accepted trade rules,and building a world-class business environment.China’s foreign trade and economic exchanges have become more frequent and increasingly connected.Especially in the past two years,the “One Belt,One Road” international cooperation has been continuously promoted.More and more foreign companies have come to China for gold mining.More and more Chinese companies have also stepped out and entered the center of the international arena.At the same time,commercial disputes will inevitably increase,the demand for international commercial arbitration will rapidly expand,and the efficiency requirements for arbitration will become higher and higher.This paper studies the interim measures of international commercial arbitration in China,analyzes the characteristics and existing problems in the rapid development of interim measures in recent years,and compares the relevant legislation and practical experience existing in the interim measures of international commercial arbitration.The needs of the times for interim measures,and based on the development status of China’s international commercial arbitration interim measures,put forward relevant recommendations.This article consists of five parts:The first part introduces the source,research significance,purpose,research methods and innovations of this paper.Today,with the increasingly frequent international economic and trade exchanges,the role of interim measures of international commercial arbitration in solving commercial disputes has been increasingly valued by countries and parties.However,due to differences in history,culture,and national conditions,there are certain differences in the provisions of the provisional measures in the legislative field.This has led to obstacles in the implementation of interim measures from recognition to recognition and implementation.The role played is still far from the expectations of people.Therefore,most countries have actively explored in this regard to solve the obstacles in addition to the inter-measures of mutual recognition and enforcement of international commercial arbitration between countries.Among them,Germany,the United States and other European and American countries took the lead in putting into practice in legislation,such as the newly revised German Civil Procedure Code.China’s "Arbitration Law" and related arbitration rules also have corresponding provisions on interim measures,but there is still a certain gap with developed countries in Europe and America.This not only limits the role of China’s international commercial arbitration interim measures in resolving disputes,but also reduces the international influence of China’s international commercial arbitration.The second part introduces the concept,characteristics and main contents of the interim measures of international commercial arbitration.First,the concept of interim measures is defined.The interim measure is to support the smooth implementation of the arbitral proceedings or to ensure the effective enforcement of the arbitral awards that will have legal effect in the future.The provisionality of the court or arbitral tribunal based on the request of the applicant before the commencement of the arbitral proceedings or during the arbitral proceedings Or temporary emergency measures.Secondly,some characteristics of temporary measures are summarized from the aspects of time,situation,nature and law.Finally,the release authority of the temporary measures,the release form and the implementation issues after the release are introduced.The third part compares and analyzes the relevant legislation and practical experience of foreign countries in the interim measures of international commercial arbitration.On the basis of the Model Law,countries such as Germany and India have amended the laws of their national legislation on interim measures for international commercial arbitration to make them law-abiding.Because Australia and the United States have different understandings of the New York Convention,the two countries have taken a different position in judicial practice.The United States tends to use the intermediate ruling as a ruling recognized by the New York Convention.However,the Australian courts do not endorse the relevant provisions of the New York Convention on interim measures.Through the comparative analysis of these countries,the fifth part of China’s international commercial arbitration interim measures provide reference for legislation and practice.The fourth part expounds the legislative status and existing problems of China’s international commercial arbitration interim measures.Our country’s legislation still insists that the court is the main body for the issuance and enforcement of interim measures.However,the arbitration system of the International Economic and Trade Arbitration Commission introduces the system of emergency arbitrators,which means that the arbitral institutions recognize the subject of emergency arbitrators for the provision of temporary measures.Because the function of the emergency arbitrator is to face the commercial disputes that are accepted,and to meet the emergency situation in which the parties may transfer the property or destroy the evidence,emergency protection measures may be issued.However,since the Mainland cannot find relevant legal basis at the national legal level,the rules of the Emergency Arbitrator System of the International Economic and Trade Arbitration Commission can only be applied in its Hong Kong branch.In addition,China’s commercial arbitration interim measures have problems in the improper connection between arbitration legislation and arbitration rules,and the arbitral tribunal cannot issue interim measures,and the conditions for recognizing and implementing interim measures are not clear.The fifth part puts forward suggestions for improving the temporary measures for international commercial arbitration in China.In terms of legislation,it is necessary to clarify the boundaries between arbitration legislation and arbitration rules.Legislation and rules have different emphasis.Macro and micro levels must grasp the boundaries and coordinate their roles.In addition,the conditions and standards for the recognition and implementation of interim measures must be clearly defined to make legislation and rules operational.In terms of the right to issue,increase the authorization of the arbitral tribunal to issue interim measures,so as to “who will hear and who will issue it”,saving judicial resources and improving efficiency.