On The Cross-border Enforcement Of Interim Measures In International Commercial Arbitration

With the deepening of globalization,the exchanges between countries become more frequent,and the cooperation between the two sides is also increasing.At the same time,there are more and more trade disputes among countries.Arbitration has the advantages of voluntariness,neutrality,professionalism and flexibility.Moreover,international commercial arbitration has high efficiency and is conducive to saving the costs of the parties.When an international trade dispute occurs,most parties will choose this way to solve the dispute.Arbitration has become the main means to solve international trade disputes.When the parties choose international commercial arbitration to solve trade disputes,they usually tend to choose a neutral country that has no connection with it,because such arbitration can give strong protection to the legitimate interests of the parties.Such countries usually have no property involvement with the parties.In case of a dispute,the Interim Measures issued by the courts or arbitral tribunals of such countries need to be implemented in other countries or regions.However,at present,there is no International Convention on the cross-border implementation of Interim Measures in the world,only Germany A small number of countries such as Britain have stipulated the implementation of Interim Measures in their countries with the help of legislation.At the same time,there is a general lack of multilateral or bilateral agreements on Interim Measures among countries.Therefore,the extraterritorial implementation of interim measures is facing the problem of difficult implementation.In addition,the arbitration tribunal has a certain interval from the beginning of arbitration to the final execution.The parties may use this interval to transfer property or destroy relevant evidence,which may make the arbitration result unfair,thus damaging the legitimate interests of the parties,not conducive to the effective execution of the arbitration result,reducing the effectiveness of arbitration and damaging its authority.Therefore,it is of great significance to improve the cross-border implementation system of interim measures.This paper consists of the following parts:The first part is "Introduction",which expounds the research significance,background and current research status of this paper,and summarizes the innovations and deficiencies in the process of writing this article.The second part is "the basic theory of Interim Measures in international commercial arbitration".This part first expounds the meaning of interim measures,and points out that interim measures have different names in various countries.Some call them "Interim Measures or protective measures",while Britain calls them "Mareva Injunction".As for the meaning of interim measures,relevant international organizations and national arbitration laws do not give specific meaning.Some commentators believe that Interim Measures refer to the final award made by the arbitration tribunal is implemented in order to safeguard the legitimate interests of both parties to the arbitration,The court,arbitration tribunal or arbitrator shall take compulsory measures against the parties to the arbitration or a third party according to the application made by the relevant personnel or the provisions of relevant laws.In my opinion,Interim Measures mean that before the final award is given,in order to protect the legitimate interests of the parties from all kinds of illegal damage,promote the effective development of the arbitration proceedings and maintain the effective implementation of the final award,the arbitration tribunal,at the initiative of the parties,Measures with mandatory and temporary characteristics for the preservation of the acts and property of relevant personnel by arbitration institutions or courts according to law.Then it points out the most typical characteristics of Interim Measures: First,urgency.After the issuance of interim measures,they must be implemented effectively in time,otherwise they may cause irreparable losses to the parties.The second is mandatory.After the formal issuance of the interim measures,if the parties do not take the initiative to perform the interim measures,the court will take the means of enforcement.Third,it is non final.In the process of arbitration proceedings,interim measures may be revoked or modified at any time.Secondly,it analyzes the types and functions of temporary measures.This paper divides temporary measures into three categories: evidence preservation measures,property preservation measures and behavior preservation measures.The functions of interim measures are: first,to prevent malicious parties from transferring property or destroying evidence and ensure the smooth progress of arbitration proceedings.Second,prevent the damage or loss of the subject matter of the dispute,so that the legitimate rights and interests of the parties will not be damaged.The third is to ensure the effective implementation of the final arbitration award.Finally,it analyzes the issuing subject of interim measures.At present,the issuing subject of interim measures mainly has three modes: the exclusive type of court means that the court is the only issuing subject of interim measures,the shared type of court and arbitral tribunal means that both the court and arbitral tribunal are qualified to issue interim measures,and the exclusive type of arbitral tribunal means that the arbitral tribunal is the only issuing subject of interim measures.The third part is "problems and reasons of cross-border implementation of Interim Measures in international commercial arbitration".Firstly,it expounds the necessity of cross-border implementation of interim measures,that is,interim measures must be implemented,otherwise the final arbitration award may become a dead letter.Interim measures are international.If there is a dispute,the Interim Measures are enforced by other countries or regions,which determines that the interim measures must be implemented across borders.Secondly,it analyzes the current situation faced by the cross-border implementation of interim measures,that is,on the cross-border implementation of interim measures,countries generally lack relevant bilateral or multilateral agreements,and there is no relevant convention in the world.Then it analyzes the problems faced by the cross-border implementation of interim measures,that is,most countries have not stipulated the implementation of foreign Interim Measures in their own country in the form of domestic legislation,and there are disputes over the applicability.Some scholars believe that interim measures can be implemented through the New York Convention,while others believe that interim measures are temporary and may be revoked at any time.They are not final decisions and cannot apply the New York Convention.Finally,it analyzes the reasons for the difficulty of cross-border implementation of temporary measures,that is,the temporary measures are temporary and may be revoked at any time.The international community has not yet established a system for cross-border implementation of interim measures.The fourth part is "the construction and improvement of Interim Measures in international commercial arbitration".Firstly,the cross-border implementation of interim measures from the level of domestic law,that is,countries should actively translate the provisions of the model law on International Commercial Arbitration(hereinafter referred to as the model law)on the cross-border implementation of interim measures into domestic law,and facilitate the implementation of Interim Measures in their own countries through domestic legislation.It also lists the advanced practices of Germany and Britain in this regard.Then,at the level of international law,first,encourage countries or regions to strengthen judicial cooperation or reciprocal mechanisms,and solve the implementation of interim measures through the establishment of multilateral or bilateral agreements.Second,the New York Convention plays a great role in international commercial arbitration.The implementation provisions of interim measures can be included by expanding the scope of application of the New York Convention.The fifth part is "recognition and enforcement of temporary measures for international commercial arbitration in foreign countries".First,the current situation of temporary measures in Chinese mainland is analyzed.That is,because of the lack of relevant provisions of domestic legislation and lack of corresponding multilateral or bilateral agreements,the probability of foreign interim measures being implemented in Chinese mainland is very low.Then it points out the problems faced by the implementation of foreign Interim Measures in Chinese mainland,that is,domestic legislation does not provide for the implementation of foreign Interim Measures in Chinese mainland,and China has not established agreements with relevant countries on the implementation of interim measures.Finally,it puts forward some suggestions to improve the cross-border implementation system of Interim Measures in Chinese mainland,that is,to transform the provisions of the model law on interim measures into national laws through domestic legislation,actively explore the establishment of multilateral or bilateral agreements with other countries or regions,and strengthen judicial cooperation with other countries.