A Practical Study On The Application Of New York Convention In Mainland China

As one of the most institutionalized non-litigation dispute settlement mechanism, international commercial arbitration is an important and effective method in international civil and commercial disputes resolution. Compared with litigation, arbitration has many advantages by its efficient and confidential nature, which is an important consideration of choosing arbitration by parties to deal with international commercial disputes. Furthermore, as ”the most effective international legislation in the history of the commercial law“, New York Convention of 1958, which represents the international commercial arbitration legislation, has paved the way for foreign arbitral awards to be recognized and enforced in the majority of countries in the world.Although the concept of pro-arbitration has been widely accepted by contracting parties of New York Convention, New York Convention gave great discretion to the contracting parties in order to attract more parties to join in the Convention. Due to differences among countries in legal system and cultural tradition, the standard of judicial review on recognition and enforcement of foreign arbitral awards differs in many aspects. Meanwhile, during the arbitration procedure, the rights of parties may not be remedied because of refusing to receive arbitral materials, not participating in the arbitral procedure or not challenging arbitral awards in timely manner during the recognition and enforcement proceedings. Especially, some parties from mainland China, with the influence of traditional culture such as "reconciliation", always make negative defense during the proceedings of recognition and enforcement of foreign arbitral awards. Meantime, the judicial practice in mainland China has also experienced a process of development. Based on research on recognition and enforcement system of foreign arbitral awards, combined with several key issues in application of New York Convention in Supreme People's Court and other relevant courts in mainland China, the author tries to make an in-depth research on recognition and enforcement system of foreign arbitral awards.Chapter 1 of this doctoral thesis is started from the basic concept of the arbitral awards. Then, the author makes further discussion on standards of defining foreign arbitral awards. With the legislative history of the Geneva Conventions and the New York Convention, the author tries to find the difference between recognition and enforcement of foreign arbitral awards. And based on statistical conclusion on the judicial cases from 2000 to 2015 in application of New York Convention in Supreme People's Court of China, the author introduces the overall picture of the judicial review on recognition and enforcement of foreign arbitral awards in mainland China.Combined with the drafting history of article 3 and article 4 in New York Convention, Chapter 2 of this thesis presents the procedures and conditions of recognition and enforcement of foreign arbitral awards in different countries, e.g. the translation of documents and the burden of proof. And on the basis of judicial practices in mainland China, the author introduces the application of New York Convention in several aspects, such as jurisdiction of the court, the qualification of applicant and time limit for application. Furthermore, regarding to several conditions, such as failing to submit the original arbitration agreement or translation of legal documents, the author elaborates the standard of judicial review in legal documents during the recognition and enforcement of foreign arbitral awards.Chapter 3 of this thesis analysis the written form and substantial requirement of arbitral agreements. As to the form elements in the judicial review of the arbitration agreement, the court in mainland China makes rational expansion during the judicial review regarding to the signature, exchanging correspondence and written form to the arbitration agreement. In view of the substantial requirement in the judicial review of arbitration agreement, based on practical cases in mainland China, the author analysis the ability of the parties to conduct, and substantial requirements applicable law of arbitration agreement.Chapter 4 mainly discusses the recognition and enforcement of foreign arbitral awards of due process and the composition of arbitration tribunal and the arbitration procedure, concentrating on failing to give appropriate notification and failing to make objections, and based on the empirical analysis of the judicial practice in mainland China, the improper arbitration tribunal composition mainly includes single trial procedures, the substitute arbitrator, violating the consultation procedures, lack of necessary notice, no decision on schedule and the arbitration procedures in violation of the agreement.Chapter 5 of this thesis discusses the judicial review of public policy. Based on the judicial practice of several developed countries, courts in international communities are reluctantly to refuse recognition and enforcement of foreign arbitral awards based on the guideline of pro-arbitration. And in mainland China, with an empirical study of public policy, the situation is almost the same, reflecting the court of mainland China applying the public policy terms in very strict standard.Finally, the author summarizes mainland China is strictly complied with the New York Convention, vigorously promote the development of international commercial arbitration. And with respect to the internal review system of foreign arbitral awards, the author advices that although in certain historical period, the reporting mechanism effectively embodies the spirit of the New York Convention, but its disadvantages becomes more and more apparent, the author recommends to establish the appeal system of foreign arbitral awards in China judicial review.