Comparative Studies On Setting Aside Arbitral Awards

As an institutionalized civil and commercial dispute resolution which outside the ordinary course of legal proceedings, one of the important reasons for people’s favor is that arbitration award shall be final and binding. However, the arbitration mechanism faces problem that there is a relationship between arbitration institution and courts, because both of them have jurisdiction over civil and commercial dispute, and the problem starts form the birth of it. In essence, commercial arbitration is a kind of contractual arrangements, which means that the parties submit their dispute that has occurred or will occur to arbitration for settlement. Therefore, it is difficult for commercial arbitration mechanism to get rid of judicial intervention of the courts, as there is no absolute freedom of contract. Also, national courts can not laissez-faire of such quasi-judicial acts without any review and supervision. Once some defects happened to arbitration award, the parties would like to raise an objection through proper judicial review. That is why there is a traditionally tension between the final cut feature of commercial arbitration and the judicial review of courts. How to coordinate the relationship and maintain the appropriate balance between the two, not only do it take advantage of arbitration mechanism, but also do it make use of necessary judicial review of courts, has been a timeless topic of arbitration theorists.The judicial review mainly reflects in setting aside or refusing to enforce arbitral award when the award is made. Among them, the role of vacation is to deprive validity of effective arbitral award and make it void ab initio, and it is the severest measure of judicial review. Both legislation in some countries and UNCITRAL Model Law on International Commercial Arbitration clearly define apply for vacation is the only way for prosecution. The regulation represents and embodies policy orientation of supporting arbitration. Besides, it is in line with the trend of modern commercial arbitration practice, and is widely adopted by many countries. But there is not any international convention which specially provides vacation of arbitral award which causes a big difference in legislation and practice of every country. This situation is clearly unfavorable to the optimum development of international and domestic arbitration. The different approaches of the countries in the field of revoking arbitral award provides a wealth of materials for academic research, such as whether the vacation is bound to lead an arbitral award expires, or it is equal to a completely denial effect of the award, or if the vacated award can go on executing, etc. Therefore, it is valuable and meaningful for specification of revocation procedures, maintaining the finality of arbitral awards, promoting the healthy development of the commercial arbitration.This dissertation is specifically divided into the following five parts:Chapter I starts from discussing concepts and types of arbitration awards and comparing various kinds of vacation, in order to define related terms and clarify the research scope. Meanwhile, it expounds the legal procedure of vacation including the ownership of the right to revoke and action of vacation, and then it also discusses the value orientation of vacation system, so that we can pave the way for commencement of the full text.Chapter II gives an overview of the reasons of vacation combined with newly legislation and convention all over the world firstly, and then it analyses reasons of applying for setting aside awards from six aspects respectively which are as follows: the arbitral awards itself, jurisdiction issues, procedural defects, evidences, arbitrability of the matters in dispute and public policy. Through comparative study of national legislation and practice, this part talks about necessity and legitimacy of reasons to set aside arbitral award should be possibly limited to procedural grounds.Chapter III focuses on legal consequences of vacation, which is related to the effectiveness of original arbitration agreement and arbitral award itself when the award is vacated. As to the effectiveness of original arbitration agreement, there are different points of view over this issue according to legislation in different countries. It is held that the original arbitration agreement is invalid in some countries, whereas valid in others; And also whether the arbitration agreement is invalid or not is the discretion of the court in some countries, while there are exceptions as well over this issue. As to the effectiveness of the annulled award, most countries recognize the intra and extra territorial effect of vacation, while few of them take the opposite view. Also, it discusses the categories of revoked mode of recognition and enforcement of arbitral awards in the extraterritorial areas, and lay the foundation for the next chapter of relief issues.Chapter IV discusses the relief issues of vacation. It utilizes propulsion of the vacation procedure as clues, talks about relief issues in procedure, in other words, the re-arbitration issues. Furthermore, it analyses possible relief methods of vacation which includes appeal, re-arbitration or litigation. At the end of the chapter, it analyses popular issues of recognition and enforcement of revoked arbitral awards from theoretical and practical aspects, parsing the roots of the issues and predict the trend of it.Chapter V goes to Chinese arbitration legislation and practice. An empirical study method is utilized, which helps analyzing samples of revoked arbitral awards in recent years. A large number of cases and charts are also used to observe status quo of China’s arbitration vacation. By the end, it put forward feasible advice about perfection of domestic and foreign-related revoked arbitration awards. On the one hand, to domestic arbitral awards, arbitrators should consider awards’legal security when they make final decision, and courts should modify their arbitration conception, etc. On the other hand, to foreign-related arbitration awards, standard should be used to unify vacation reasons and comply with vacation procedure strictly, and effectiveness of foreign revoked awards should be explicit. In addition, relief of foreign related awards should be further improved.