Chương VII Luật trọng tài thương mại 2010: Biện pháp khẩn cấp tạm thời

Chapter VII

INTERIM URGENT MEASURES

Article 48. Right to request application of interim urgent measures

1. The disputing parties may request the arbitration council or a court to apply interim urgent measures under this Law and relevant laws, unless otherwise agreed by the parties.

2. A request for a court to apply interim urgent measures shall not be regarded as rejection to the arbitration agreement or waiver of the right to dispute settlement by arbitration.

Article 49. The arbitration council's competence to apply interim urgent measures

1. At the request of one of the parties, the arbitration council may apply one or more interim urgent measures to the disputing parties.

2. Interim urgent measures include:

a/ Prohibiting any change in the status of assets under dispute;

b/ Prohibiting or forcing any disputing party to commit one or more certain acts to prevent acts which adversely affect the process of arbitral proceedings;

c/ Distraining assets under dispute;

d/ Requesting preservation, storage, sale or disposal of any asset of one disputing party or all disputing parties;

e/ Requesting temporary money payment between the parties;

f/ Prohibiting transfer of the rights to assets under dispute.

3. During the dispute settlement, if one party has requested a court to apply one or more interim urgent measures specified in Clause 2 of this Article but later requests the arbitration council to apply such measures, the arbitration council shall refuse such application.

4. Before applying interim urgent measures, the arbitration council may force the party that requests such application to perform the financial security obligation.

5. The arbitration council which applies other interim urgent measures or those in excess of the requester's request for application of interim urgent measures, thus causing damage to the requester, the party to which these measures are applied or a third person, the damage sufferer may sue for compensation under the civil procedure law.

Article 50. Procedures for the arbitration council to apply interim urgent measures

1. The requester for application of interim urgent measures shall send a written request to the arbitration council.

2. A written request for application of interim urgent measures must contain:

a/ Date of making:

b/ Name and address of the requester;

c/ Name and address of the party to whom/ which interim urgent measures are to be applied:

d/ Summary of the circumstances of the dispute;

e/ Reason for the application of interim urgent measures;

f/ Interim urgent measures to be applied and specific requirements.

In addition to the request, the requester shall provide the arbitration council with evidence to prove the necessity to apply such interim urgent measures.

3. As decided by the arbitration council, the requester shall deposit a sum of money, precious metal, gemstone or valuable papers of a value set by the arbitration council equivalent to the amount of the loss which could be caused by improper application of interim urgent measures in order to protect the requester's interests. Such a sum of money, precious metal, gemstone or valuable papers shall be deposited in a blocked account at a bank decided by the arbitration council.

4. Within 3 working days after receiving a request, immediately after the requester has provided the security specified in Clause 3 of this Article, the arbitration council shall consider and decide to apply interim urgent measures. In case of refusal, the arbitration council shall issue a written notice clearly stating the reason to the requester.

5. The enforcement of the arbitration council's decision to apply interim urgent measures complies with the law on enforcement of civil judgments.

Article 51. The arbitration council's jurisdiction and procedures for changing. supplementing or canceling interim urgent measures

1. At the request of one party, the arbitration council may change, supplement or cancel interim urgent measures at any lime during the dispute settlement.

2. Procedures for changing or supplementing interim urgent measures comply with Article 50 of this Law.

3. The arbitration council may cancel the applied interim urgent measures in the following cases:

a/ The requester for application of interim urgent measures requests cancellation of such measures;

b/ The party subject to the enforcement of the decision to apply interim urgent measures has handed over its assets or another person has implemented the obligation security measure towards the requester;

c/ The obligation of the obliged party terminates under law.

4. Procedures for canceling interim urgent measures are specified as follows:

a/ The requester files a request for such cancellation with the arbitration council;

b/ The arbitration council considers and decides to cancel interim urgent measures and considers and decides to allow the requester to receive back the security assets specified in Clause 3, Article 50 of this Law. unless the requester has to compensate for a wrongful request causing damage to the party to which interim urgent measures are applied, or to a third person.

A decision to cancel interim urgent measures shall immediately be sent to the disputing parties and the civil judgment enforcement agency.

Article 52. Responsibilities of requesters for application of interim urgent measures

A requester for application of interim urgent measures shall take responsibility for his/her request. He/she shall compensate for his/her wrongful request causing damage to the other party or a third person.

Article 53. The court's jurisdiction, order and procedures for applying, changing or canceling interim urgent measures

1. After filing a petition, if its lawful rights and interests arc infringed or in a direct danger of infringement, the filing party may file a request with a competent court to apply one or more interim urgent measures.

2. Within 3 working days after receiving such request, the president of the competent court shall assign a judge to consider and deal with the request. Within 3 working days after being assigned, such judge shall consider and decide to apply or not to apply interim urgent measures. The judge shall decide to apply interim urgent measures immediately after the requester takes the security measure. In case of refusal, the judge shall issue a written notice clearly stating the reason to the requester.

3. A party may request a court to change, supplement or cancel interim urgent measures. The assignment of a judge to consider and deal with such request complies with Clause 2 of this Article.

4. The order and procedures for applying, changing, adding or canceling a court's interim urgent measures and inspecting law observance during the application of these measures comply with the Civil Procedure Code.

5. During the dispute settlement, if one party has requested the arbitration council to apply one or several interim urgent measures but later requests in writing a court to apply these measures, the court shall refuse such request and return the request. unless such request falls beyond the arbitration council's jurisdiction.