Research On The Emergency Arbitrator System In International Commercial Arbitration

In October 2018,Beijing Arbitration Commission(BAC)administered the first emergency arbitrator proceeding in China mainland which is referred to as "GKML" case and its interim award was enforced in Hong Kong High Court upon the admission and leave of it,which arouse significant concerns in the field.What is more notable is providing that the case were to be enforced in China mainland the interim award could not be admissible and enforceable because firstly the People’s Court is exclusively empowered to grant interim measures rather than the emergency arbitrator,and secondly the award granted by emergency arbitrator generally speaking is "interim",not "final",which therefore could not be admissible and enforceable under the rules of the New York Convention.International commercial arbitration law is a sort of commerce safeguard law to some extent,which pursues benefit and autonomy of will as its principle,and the establishment of emergency arbitrator procedures(referred to as EAPs)can make up for the vacancy about emergency relief or conservatory measure under arbitration rules before the formal referral to arbitration or the constitution of the arbitral tribunal or the formal issuance of interim or final award.EAPs can satisfy the efficient need of the international commercial arbitration dispute and the imminent need of the parties and the nature of EAPs aims at avoiding the loss for the parties with no influence on the state or state entity.Whereas the "final award" is admissible and enforceable within the meaning of the New York Convention,the award issued by the emergency arbitrator however is interim and could be potentially revoked since the constitution of the arbitral tribunal,and therefore the award could not be commonly admitted and enforced,which results in the concerns about the enforceability of the decision made by the emergency arbitrator among the scholars.According to the practices,the decision made by the emergency arbitrator is voluntarily complied and performed by the parties under many circumstances,while some state or region has particularly legislated to admit the interim measure granted by the emergency arbitrator so as to enforce at the court,for instance Hong Kong,Singapore and etc.It is an international trend to support the interim award issued by the emergency arbitrator.In the meantime,CIETAC(China International Economic and Trade Arbitration Commission),SHIAC(Shanghai International Arbitration Center),BAC(Beijing Arbitration Commission),CMAC(China Maritime Arbitration Commission)have provided the EAPs through the amendment on arbitration rules in terms of separate attachment or the combination with interim measure,which reflects the efforts made by the arbitration authorities in China to adapt themselves to the trend of arbitration,to improve their competence,and to fulfil the internationalization of arbitration,whereas the legislation of arbitration in China has slowed down the establishment and development of EAPs.Despite that the interim measure provisions in the legislation were amended in Civil Procedure Code,still the power of granting interim measure is held by the court.With no solid ground of legislation,EAPs can hardly exist in the arbitration rules of China: Once the place of arbitration is in China(excluding Hong Kong),arbitration procedures should conform to the coerciveness of our legislation of arbitration which precludes the power of the arbitral tribunal for granting the interim measures and lets alone the application of EAPs.On the above the thesis was made with five chapters,studying in detail about the EAPs,young and potential.The Introduction,is an overall summary on the reason of selecting the topic,review of the existing research achievements,research method of this thesis,innovation,and overview of the document;Chapter One discusses the background of EAPs and the development;Chapter Two discusses the legal basis and values of EAPs by the comparison among the various rules of prominent arbitration institutes;Chapter Three investigates the EAPs overseas about mainly the granting and enforcement of interim measure and discovers what can be borrowed within;Chapter Four analyzes the current status of EAPs in China with the "GMKL" case administered by BAC,and discusses the establishment and rule design of EAPs in China focusing on the granting and enforcement,with author’s comments.