Research On Emergency Arbitrator Rules In China

International commercial arbitration has become a popular dispute resolution method for parties in international trade because of its flexible and convenient procedures,the neutrality of arbitrators and confidentiality.Interim measures can protect interests of the parties,realize the authority of arbitration and the predictability of arbitration results,so they have been put forward to higher requirements with the development of globalization.However,the application of interim measures before the formation of the arbitral tribunal can only be applied to the court.This violates the original intention of the parties to use convenient and economical arbitration to resolve the dispute and violates the autonomy of the parties.Therefore,in order to solve these practical problems,the major international arbitration institutions have actively explored.The US International Center of Dispute Resolution revised its arbitration rules in 2006,and introduced the emergency arbitrator rules for the first time,giving emergency arbitrators perm,ission to publish interim measures before the arbitral tribunal is formed.As an emergency interim relief,the emergency arbit:rator rules is more efficient than general arbitral procedure.They can stop commercial secrets from leaking and give the emergency arbitrators greater discretion to deal with various emergencies.Specialized remedies for emergency situations appearing before the formation of the arbitral tribunal can better guarantee the smooth operation of the arbitral proceedings,thus can better protect the interests of the parties;at the same time,because the procedures have high requirements for efficiency,the deadline of each procedure is relatively short,so in order to balance the interests of all parties,the system also designed the provisions of the relevant guarantee procedures,such as the requirement for the applicant to provide guarantees,the limited effectiveness of the decision which the emergency arbitrator made,the prohibition of unilateral temporary measures,etc..Therefore,from the beginning of its establishment,the emergency arbitrator is very popular with its unique advantages.The major international arbitration institutions,such as Arbitration institute of the Stockholm Chamber of Commerce,Singapore International Arbitration Center,International Chamber of Commerce,Hong Kong International Arbitration Center etc,are introduced these stipulations to their arbitration rules.With the development of increasingly globalized economic,inter-communication between countries is more frequent.In order to resolve commercial disputes rapidly and promote benign exchanges,on the basis of suming up international experience,China’s Shanghai International Economic and Trade Arbitration Commission,China International Economic and Trade Arbitration Commission,Beijing Arbitration Commission also introduced this advanced rules in 2014 and 2015.However,our laws does not give the arbitral tribunal the corresponding power in legislative level,which makes the emergency arbitrator hard to be applied.The practice is inconsistent with the current situation of lack of relevant legal provisions,and thus it cannot play its true utility.Moreover,we introduced the rules for the first time at the end of 2014,and its development has not been perfect so far.There are still some shortcomings in the application of emergency arbitrators,the specific operational procedures and the specific design of power checks and balances.Therefore,in order to adapt to the development of emergency arbitrator in the field of international commercial arbitration and promote the modernization and internationalization of arbitration in China.Now,we should solve existing problems at the legislative level and the arbitration rules’ level.On the one hand,China’s"Arbitration Law"should refer to international common practice and give the arbitral tribunal the power to issue interim measures on the basis of retaining the jurisdiction of the court’s provisional measures.On the other hand,our arbitral institutions should improve the specific procedures for the operation of the emergency arbitrator in their arbitration rules.Firstly,clarifying the method of application,applicable standards and application time of the procedure;secondly,giving emergency arbitrator the power of self-discipline and determine the validity of the decision made by the arbitrator;further refine the exit rules of the emergency arbitrator and make good connection between the emergency arbitral tribunal and the entity dispute arbitration tribunal.Finally,conditional permission for emergency arbitrators to take unilateral interim measures to avoid failure of the procedural purpose in special circumstances.In addition,all those who have power are prone to abuse of power.Therefore,it is necessary to improve the disclosure of information and emergency arbitrators’evasion provisions,and design relevant punitive measures against the emergency arbitrators to make them use powers better.