Research On The Rule Application Of Anti-Arbitration Injunctions In International Commercial Arbitration

International commercial arbitration,as an efficient and convenient means to settle disputes,is more and more favored by the parties involved in transnational transactions.As a result,there are many parallel procedures of international commercial arbitration,and anti-arbitration injunction aimed at solving this phenomenon come into being.This paper takes the rule application of international commercial arbitration injunctions as the research object,and mainly solves three problems.Firstly,explore the legality and legitimacy of international commercial arbitration injunctions.Secondly,clarify the realistic basis for the construction of anti-arbitration injunctions system in China.Thirdly,clarify the signing conditions of anti-arbitration injunctions.Anti-arbitration injunction has been also subject to controversy and criticism like anti-suit injunction.The practical differences of anti-arbitration injunction are mainly reflected in two aspects.On the one hand,there are differences in the acceptance of anti-arbitration injunction.According to the acceptance degree,it can be divided into accepting countries,not accepting countries and those countries who have unclear position.On the other hand,there are differences in the specific conditions for the application of anti-arbitration injunction,including the determination of oppression condition and the identification of other considerations.In addition,there are disagreements about whether anti-arbitration injunction violates article 5 of the Model Law.Article 5 of the Model Law provides that no court shall interfere in matters under its exclusive jurisdiction.According to whether the anti-arbitration injunction is a "temporary measure of preservation" under Article 9,there are two conditions.If it is,the court has the power to issue an anti-arbitration injunction under Article 9.If it is not,it follows from an analysis of "matters governed by this Act" that the issuance of an anti-arbitration injunction by the court does not constitute interference in matters governed by the Model Law.The jurisprudential basis for the rule application of international commercial arbitration injunction mainly includes three aspects.Firstly,anti-arbitration injunction is legal and does not violate the New York Convention and the Model Law.Article 2,paragraph 3,of the New York Convention stipulates the obligation of the parties to submit to arbitration for settlement of disputes under specific circumstances.It does not involve the relevant contents of anti-arbitration injunction,which can be regarded as acquiescing to the possibility of the court prohibiting arbitration proceedings.This clause protects valid and enforceable arbitration agreements,but does not protect invalid or unenforceable arbitration agreements.In fact,the court has stepped out of the framework of the New York Convention by issuing an anti-arbitration injunction.Secondly,the anti-arbitration injunction is legitimate and does not conflict with the principle of arbitral tribunal’s self-adjudication jurisdiction and the principle of international comity.The principle of arbitral tribunal’s self-adjudication jurisdiction is not enough to justify rejecting all anti-arbitration injunctions.The court may consider jurisdictional disputes in the arbitration process.If the conclusion is that the arbitration agreement is invalid,then in general the principle of arbitral tribunal’s self-adjudication jurisdiction will not prevent the court from issuing anti-arbitration injunction.When issuing an anti-arbitration injunction against a foreign arbitral tribunal,the court don’t need to worry about whether it will infringe on foreign judicial sovereignty.Thirdly,the anti-arbitration injunction accords with the arbitration value and does not inconsistent with the principle of court’s minimum intervention and the idea of supporting arbitration.The anti-arbitration injunction is applied for by one of the parties and issued by the court carefully after the conditions for issuing are met.It does not exceed the scope requested by the parties.In the long run,the anti-arbitration injunction is not inconsistent with the idea of supporting arbitration.Instead,it is actually conducive to promoting the development and improvement of international commercial arbitration.China has localization needs for the construction of anti-arbitration injunction system.Firstly,Chinese parties have the need to apply for the anti-arbitration injunction.In the case of China Shipping Container Lines Co.Ltd.v Big Port Serv.DMCC,American court issued the anti-arbitration injunction according to the application of Chinese party.And in some judicial review cases involving foreign arbitration,through analyzing the whole process of the dispute,we can conclude the shortcoming without anti-arbitration injunction system.Secondly,there are already judicial practice on the anti-arbitration injunction in Hong Kong.The Hong Kong High Court once refused to issue the anti-arbitration injunction on the grounds of lack of urgency.In the future,there may be an inter-regional legal conflict involving anti-arbitration injunction between the mainland and Hong Kong.Thirdly,it is feasible for the courts in China to issue anti-arbitration injunction.The revision of Arbitration Law in China is consistent with international arbitration rules.In the future,we can learn from the model of anti-suit injunction issued by courts to realize the implementation of anti-arbitration injunction.By analyzing the judicial practices in countries that accept the anti-arbitration injunction,and combining with the national conditions in China,we can conclude the issuing conditions of anti-arbitration injunction.Firstly,the subject of application for an anti-arbitration injunction is mainly the parties of arbitration,and in special cases,it also includes the third party of arbitration.And the subject of issuing an anti-arbitration injunction is the court which has sufficient connection with the dispute,usually is the court of the place of arbitration,and it can only be issued on application.Secondly,distinguish local arbitration and foreign arbitration.For local arbitration,an anti-arbitration injunction shall be issued by the court of the place of arbitration.Forr foreign arbitration,an anti-arbitration injunction shall be issued by the court with sufficient connection to the case.And there is a time limit for the party to apply for an anti-arbitration injunction.It may clearly stipulate that the party shall apply for an anti-arbitration injunction before the first hearing of the arbitration tribunal,or it may stipulate on the opposite side that the court shall not accept the unreasonable delay of the application.Thirdly,the validity of the arbitration agreement between the parties is defective,and the arbitration procedure has unfair extreme circumstances,including the arbitration procedure is oppressive,unreasonable,and the parties abuse the arbitration procedure that cause injustice.