国际民商事争议解决中的禁止执行令制度研究

The Research of Anti-enforcement Injunctions in the Settlement of International Civil and Commercial Disputes

起源于百年前的禁止执行令近年来在国际社会重新受到关注。禁止执行令是指一国法院或仲裁庭签发的意在阻止一定范围内执行法院判决或仲裁裁决的限制性命令。它既是禁令,亦是一种临时措施,具有全球性、预防性以及攻击性与保护性并存等特点。近几年来,禁止执行令制度逐渐在英国、美国以及德国等国家的实践中引发关注与争议,在签发的主体资格、签发的条件要素和法律适用等方面有了新的发展。对禁止执行令的有效执行与适当救济,能够有效实现该制度在协调管辖权与促进国际民商事争议公正解决等方面的功能。在解决国际民商事争议的历程中,禁止执行令与"承认和执行"相互补充,具有协调国际利益的功能。随着国际民商事交往的深入发展,禁止执行令的潜在价值将得到更好实现。

Anti-enforcement injunctions get more attentions in international community in recent years. This is an injunction issued by a court or an arbitral tribunal in order to forbid the enforcement of a judgment or an arbitral award in certain range, it is not only an injunction but also an interim measure, which is worldwide and preventable, with both aggressive and protective. In recent years, the injunction continuously brings out attentions and controversies in Britain, America, Germany and other countries, which promote the improvement of the injunction, such as capacity as a subject in it, conditions to i..ssue it and its applicable law. The functions such as coordination of jurisdiction and improvemenlL of international dispute resolution could be achieved better through effective enforcement and proper relief of anti-enforcement injunctions. In the progress of international dispute resolution, anti-enforcement injunctions and ＂enforcement and recognition＂ could complement each other. With deeply development of international civil and commercial exchange, the value of anti-enforcement injunctions could be realized better.