国际商事仲裁临时措施研究
发布时间：2018-11-05 11:34
【摘要】： 摘要:作为全球经济交往中解决各国商事主体之间争议的重要方式,国际商事仲裁一直处在自我完善和发展的过程中。临时措施制度正是从无到有被纳入国际商事仲裁,并在实践中逐渐取得了合法存在的地位。但同时临时措施也是一把“双刃剑”。一方面,临时措施有利于仲裁程序的顺利进行及仲裁裁决的有效执行;另一方面,临时措施如被滥用将会对该措施针对的当事人造成无法弥补的损失和不公平。因此,合理设计临时措施的法律制度就显得尤为重要。长久以来,由于各国仲裁临时措施的法律制度不够完善,导致临时措施在国际商事仲裁实践中遇到了许多问题,直接影响了国际商事仲裁的功效。《国际商事仲裁示范法》第17条关于临时措施的新规定代表国际商事仲裁临时措施的最新发展。反观我国的立法与实践,法律至今未对仲裁临时措施作出一般性的规定,这不仅使我国的仲裁立法和实践落后于国际商事仲裁的发展趋势,也不便于仲裁庭充分利用临时措施辅助其作出公正的裁决,更重要的是不能对申请人提供全方位的保护,这些缺陷最终降低了我国仲裁事业的国际竞争力。本文在对相关仲裁规则、仲裁立法和仲裁案例关于临时措施的处理模式进行比较分析的基础上,评述了我国关于临时措施的仲裁立法及实践,认为应借鉴国际经验来完善我国临时措施法律制度,为我国国际商事仲裁事业的健康发展创造良好的法制环境。本文主要采用比较分析和实证分析的方法,全文共分五章。 第一章分析了国际商事仲裁临时措施产生的法律背景,首先介绍了国际商事仲裁临时措施的历史由来和现实发展,接着从不同视角阐明其在国际商事仲裁中的价值取向,最后从实践运用中说明它的意义。 第二章主要介绍国际商事仲裁临时措施的法律属性。首先界定了临时措施的定义和特征,接着介绍了临时措施有哪些具体类型,最后比较分析了它和英美法系以及大陆法系相关诉讼制度的异同。 第三章分别从以下三个方面加以论述:由仲裁庭排他性发布临时措施存在的的障碍;由法院排他性发布临时措施存在的障碍;总结了各大仲裁机构仲裁规则和各国仲裁法关于临时措施发布权分配的规定,得出两者逐渐趋同的结论。 第四章阐述了临时措施域外执行的相关法律问题。首先说明了临时措施发布和执行的形式,接着论述了临时措施的执行能否适用《纽约公约》,随后介绍了各国协助仲裁庭域外执行临时措施的司法实践,最后阐述了《国际商事仲裁示范法》的规则。 第五章从我国国际商事仲裁临时制度的发布时间、执行对象、决定权以及法院审查及发布临时措施的机构四个方面分析了我国国际商事仲裁临时措施的法律规定,指出了缺陷,提出了完善的建议。
[Abstract]:Absrtact: as an important way to solve the disputes between commercial subjects in global economic exchanges, international commercial arbitration has been in the process of self-improvement and development. The system of interim measures was brought into international commercial arbitration from scratch and gradually gained the status of legal existence in practice. But temporary measures are also a double-edged sword. On the one hand, interim measures are conducive to the smooth conduct of arbitration proceedings and the effective enforcement of arbitral awards; on the other hand, the abuse of interim measures will cause irreparable losses and unfairness to the party against whom the measure is directed. Therefore, the reasonable design of temporary measures of the legal system is particularly important. For a long time, due to the imperfect legal system of arbitration interim measures in various countries, interim measures have encountered many problems in the practice of international commercial arbitration. The new provisions on interim measures in Article 17 of the Model Law on International Commercial Arbitration represent the latest development of interim measures in international commercial arbitration. Looking back at our country's legislation and practice, the law has not made general provisions on the interim measures of arbitration, which not only makes our arbitration legislation and practice lag behind the development trend of international commercial arbitration. It is also not convenient for the arbitral tribunal to make full use of interim measures to assist it in making a fair ruling. More importantly, it cannot provide all aspects of protection to the applicant, which ultimately reduces the international competitiveness of China's arbitration cause. On the basis of comparative analysis of the relevant arbitration rules, arbitration legislation and the handling mode of interim measures in arbitration cases, this paper reviews the arbitration legislation and practice on interim measures in China. It is suggested that we should use international experience for reference to perfect the legal system of China's interim measures and create a good legal environment for the healthy development of the cause of international commercial arbitration in China. This paper mainly uses the method of comparative analysis and empirical analysis, the full text is divided into five chapters. The first chapter analyzes the legal background of interim measures in international commercial arbitration, first introduces the history and development of interim measures in international commercial arbitration, and then expounds the value orientation of interim measures in international commercial arbitration from different perspectives. Finally, its significance is explained in practice. The second chapter mainly introduces the legal attribute of the interim measure of international commercial arbitration. Firstly, it defines the definition and characteristics of interim measures, then introduces the specific types of interim measures, and finally compares and analyzes the similarities and differences between interim measures and the related litigation systems of Anglo-American law system and civil law system. The third chapter discusses the following three aspects: the obstacles to the exclusive issuance of interim measures by the arbitral tribunal, the obstacles to the exclusive issuance of interim measures by the court; This paper summarizes the rules of arbitration of major arbitration institutions and the provisions of the arbitration laws of various countries on the distribution of the power to issue interim measures, and draws a conclusion that the two are gradually converging. The fourth chapter expounds the relevant legal issues of the extraterritorial implementation of interim measures. First of all, it describes the form of issuance and enforcement of interim measures, then discusses the applicability of the New York Convention to the enforcement of interim measures, and then introduces the judicial practice of States to assist arbitral tribunals in the extraterritorial enforcement of interim measures, Finally, the rules of the Model Law on International Commercial Arbitration are expounded. The fifth chapter analyzes the legal provisions of the interim measures of international commercial arbitration in China from four aspects: the time of issue, the object of execution, the decision of decision and the organization of the court to examine and issue the interim measures, and points out the defects. Some suggestions are put forward.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D997.4
本文编号：2311960
[Abstract]:Absrtact: as an important way to solve the disputes between commercial subjects in global economic exchanges, international commercial arbitration has been in the process of self-improvement and development. The system of interim measures was brought into international commercial arbitration from scratch and gradually gained the status of legal existence in practice. But temporary measures are also a double-edged sword. On the one hand, interim measures are conducive to the smooth conduct of arbitration proceedings and the effective enforcement of arbitral awards; on the other hand, the abuse of interim measures will cause irreparable losses and unfairness to the party against whom the measure is directed. Therefore, the reasonable design of temporary measures of the legal system is particularly important. For a long time, due to the imperfect legal system of arbitration interim measures in various countries, interim measures have encountered many problems in the practice of international commercial arbitration. The new provisions on interim measures in Article 17 of the Model Law on International Commercial Arbitration represent the latest development of interim measures in international commercial arbitration. Looking back at our country's legislation and practice, the law has not made general provisions on the interim measures of arbitration, which not only makes our arbitration legislation and practice lag behind the development trend of international commercial arbitration. It is also not convenient for the arbitral tribunal to make full use of interim measures to assist it in making a fair ruling. More importantly, it cannot provide all aspects of protection to the applicant, which ultimately reduces the international competitiveness of China's arbitration cause. On the basis of comparative analysis of the relevant arbitration rules, arbitration legislation and the handling mode of interim measures in arbitration cases, this paper reviews the arbitration legislation and practice on interim measures in China. It is suggested that we should use international experience for reference to perfect the legal system of China's interim measures and create a good legal environment for the healthy development of the cause of international commercial arbitration in China. This paper mainly uses the method of comparative analysis and empirical analysis, the full text is divided into five chapters. The first chapter analyzes the legal background of interim measures in international commercial arbitration, first introduces the history and development of interim measures in international commercial arbitration, and then expounds the value orientation of interim measures in international commercial arbitration from different perspectives. Finally, its significance is explained in practice. The second chapter mainly introduces the legal attribute of the interim measure of international commercial arbitration. Firstly, it defines the definition and characteristics of interim measures, then introduces the specific types of interim measures, and finally compares and analyzes the similarities and differences between interim measures and the related litigation systems of Anglo-American law system and civil law system. The third chapter discusses the following three aspects: the obstacles to the exclusive issuance of interim measures by the arbitral tribunal, the obstacles to the exclusive issuance of interim measures by the court; This paper summarizes the rules of arbitration of major arbitration institutions and the provisions of the arbitration laws of various countries on the distribution of the power to issue interim measures, and draws a conclusion that the two are gradually converging. The fourth chapter expounds the relevant legal issues of the extraterritorial implementation of interim measures. First of all, it describes the form of issuance and enforcement of interim measures, then discusses the applicability of the New York Convention to the enforcement of interim measures, and then introduces the judicial practice of States to assist arbitral tribunals in the extraterritorial enforcement of interim measures, Finally, the rules of the Model Law on International Commercial Arbitration are expounded. The fifth chapter analyzes the legal provisions of the interim measures of international commercial arbitration in China from four aspects: the time of issue, the object of execution, the decision of decision and the organization of the court to examine and issue the interim measures, and points out the defects. Some suggestions are put forward.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D997.4
【引证文献】
相关期刊论文 前1条
1 吕悦;彭剑波;;《国际商事仲裁示范法》与中国仲裁法关于临时措施的比较研究[J];法制与经济(上旬);2012年12期
，本文编号：2311960
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