Legal Issues Regarding The Issuance Of The Anti-Arbitration Injunction In International Commercial Arbitration

In the recent decade,the judicial intervention arbitration system represented by the Anti-Arbitration Injunction has been showing a "popular" trend among lots of countries.However,due to the difference in the concept of judicial intervention in arbitration,there is a principled difference between the civil law system and the common law system.This article takes the legal issues of anti-arbitration in international commercial arbitration as the research object,and compares and analyzes laws and cases,intending to solve the following three issues:(1)the first,whether the anti-arbitration injunctions are legal in the law system;(2)the second,the conditions for the issuance of anti-arbitration injunctions;(3)the third,whether it is necessary and available for China to establish the anti-arbitration injunctions.First of all,with regard to the legality of the anti-arbitration injunction,some views hold that the injunction violates the provisions of Article 2,paragraph 3,of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards(hereinafter referred to as the "New York Convention"),hindering the right of the arbitral tribunal to determine whether it has jurisdiction.However,according to the proviso of the article,the New York Convention does not protect invalid arbitration agreements.Therefore,if the court holds that the arbitration agreement is null and void,inoperative or incapable of being performed,it has the right to issue an injunction to the arbitration tribunal.In addition,some scholars hold that the injunction violates Article 5 of the UNCITRAL Model Law on Arbitration(hereinafter referred to as the "Model Law on Arbitration")regarding the limits of court intervention,but if the injunction is interpreted as a provisional measure of the Model Law,it satisfies the proviso of Article 5 of that Law "except where so provided in this Law".Secondly,the requirements for issuing an arbitration injunction are mainly divided into two aspects: subject and conditions.The subject here include the applicant and the issuing court.In terms of the applicant for the injunction,the main discussion is whether the third party belongs to the scope of the application subject.Although the issuance of arbitration injunction is generally centered on parties of the dispute,there are also injunctions applied by the third party in practice.Taking the Nautical Supreme Sdn Bhd case(Jaya Sudhir v.Nautical Supreme SDN BHD)as an example,the Nautical Court has used the following criteria:(a)There is a serious question to be tried.(b)The balance of convenience lies in favour of the applicant.(c)Damages are not an adequate remedy.(d)An undertaking as to damages by the applicant.These four aspects are of great importance to judge when issuing an anti-arbitration.On the other hand,as far as conditions of injunctions are concerned,they can be divided into substantive conditions and procedural conditions.With regard to substantive conditions,they mainly are whether the trigger conditions are met,and whether it meets the consideration of fairness factors.In the practice,the courts hold a cautious attitude in issuing the anti-arbitration injunctions on the whole.When the trigger conditions are met,it will further judge from the perspective of fairness(1)whether the continued arbitration will cause oppression and serious injustice to the applicant for the injunction;and(2)whether the issuance of the arbitration injunction at the same time is oppressive or unfair to the respondent.The conditions of procedure mainly consider whether the application for an injunction is too late.The excessive delay attributed to the applicant may directly cause the court to refuse to grant an injunction against the arbitrator or tribunal on the grounds of the delay in the application.Finally,in terms of whether it is necessary for China to establish the system of anti-arbitration injunctions,this paper firstly introduces the advantages of it as a remedy.Especially,if the arbitration award is revoked or not executed due to the forged signature of the parties or the absence of arbitration clause or arbitration agreement in the signed contract,if the court can intervene in arbitration in advance,issuing an injunction against arbitration,the parties can avoid unnecessary litigation or arbitration.As for the feasibility of establishing the system of such injunctions in China,there is corresponding legal basis domestic.China’s Arbitration Law has not completely established the principle of Competence-Competence.Article 20 stipulates that the court has the priority to determine the validity of arbitration agreement.In addition,there are similar cases as the anti-arbitration injunction existing in China.For example,which provides timely and effective relief measures for the domestic party of maritime disputes to deal with the injunction issued by foreign courts.As for the construction of the injunction system,we should insist on the principle of prudence,specify the conditions of issue and issue court,and improve the execution and relief.