論國際商事仲裁庭簽發禁訴令制度的構建

The Construction of the System of Anti-suit Injunctions Issued by International Commercial Arbitral Tribunals

隨著國際經濟貿易的發展，禁訴令制度逐步在國際商事爭議解決機制中確立下來，部分國際商事仲裁庭已有簽發禁訴令的實踐。相關國際公約、仲裁規則以及部分國內法為仲裁庭簽發禁訴令提供了法律依據，仲裁庭簽發禁訴令能夠規制當事人濫用訴權、抑制平行訴訟、維護當事人合法權益，具有正當性、可行性。我國有必要建立仲裁庭簽發禁訴令的制度，在遵循尊重他國司法主權與國際禮讓原則、兼顧公平與效率原則、利益平衡原則的基礎上，結合相關國際公約與仲裁規則，參照我國具體的法律實踐，明確仲裁庭簽發禁訴令的條件，逐步形成以《民事訴訟法》《仲裁法》為基礎、國際法與國內法相互協調的仲裁庭簽發禁訴令的制度體系。

With the development of international economy and trade, the anti- suit injunction system has been gradually established in the international commercial dispute resolution system. Some international commercial arbitral tribunals have issued anti-suit injunctions in practice. Related international conventions, arbitration rules and the domestic laws of some countries provide the legal basis for the arbitral tribunals to issue anti-suit injunctions. Anti-suit injunctions issued by arbitral tribunals can regulate the parties’abuse of litigation rights, inhibit parallel litigation, and safeguard the legitimate rights and interests of the parties. Thus it is legitimate and feasible. It is necessary for China to establish the system of issuing anti-suit injunctions by the arbitral tribunals. On the basis of adhering to the principle of respecting the judicial sovereignty of other countries and international comity, the principle of fairness and efficiency and the principle of interests balancing, combined with relevant international conventions and arbitration rules, and with reference to the specific legal practice in China, the conditions for the issuing of anti-suit injunctions by arbitral tribunals should be stipulated. The system of issuing anti-suit injunctions by arbitral tribunals should be gradually established based on the Civil Procedure Law and the Arbitration Law, as well as the coordination between the international and domestic law.