Judicial Supervision Over International Commercial Arbitration

With the increase of international economical communications in recent decades, international commercial arbitration has gradually become one of the main methods for solving the international commercial disputes. The legal system of international commercial arbitration has been well developed in the international society since the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention") and the UNCITRAL Model Law were drawn up. Judicial Supervision over International Commercial Arbitration means a court exercised the power to review the international commercial arbitral awards or to intervene in the international arbitral procedures. Through the judicial supervision, the court has the right to deny recognition or enforcement, set aside the international commercial arbitral awards or refer the disputes to arbitration again.This article will discuss the meaning and the features of the judicial supervision over international commercial arbitration. It will also analysis its legal basis and operations in different countries. Based on Chinese legal practice, this article will emphasize the legislation and practice of judicial supervision in China. As a conclusion, this article will express the writer's opinion that the court should take the proper judicial supervision over international commercial arbitration.Chapter one will examine the meaning, the features and the nature of international arbitration. It analyses the difference between international commercial arbitration and the domestic commercial arbitration and clarifies the special meaning of commercial arbitration concerning foreign affairs in China. This part of the article also explores the essence and the character of Judicial Supervision over International Commercial Arbitration.Chapter two will analysis the legal basis of Judicial Supervision over International Commercial Arbitration not only from the view of the arbitration itself, but also from the view of the court. At the same time this part will discuss the theoretical and practical disputes in the operation of the judicial supervision and give comments to the theory of merits supervision (substantial supervision) and the proper supervision (procedural supervision). It will draw a conclusion of the importance of the proper supervision from the development of the Judicial Supervision over International Commercial Arbitration in the United Kingdoms. Chapter three will specify the detailed operation of judicial supervision over international commercial arbitration. Through discussing the jurisdictional court and the scope of judicial supervision, this part will point out the way that judicial supervision operates includes the court's review the arbitrability of the disputes, the validity of the arbitration agreement, the due process of the arbitration proceeding and the accordance to the public policy. As a result, the legal effects of judicial supervision will usually fall into four categories, which are recognition of foreign arbitral awards, setting aside the arbitral awards, referring to arbitration again and denying the enforcement of the arbitral awards. This part also introduces the practice of judicial supervision over international commercial arbitration in US, France, Germany, Japan, Australia and Hong Kong. Chapter four will make an overview on Chinese legislation and practice in judicial supervision over international commercial arbitration. The legal resources in China include the Civil Procedure Law, the Arbitration Law, the Judicial Interpretation released by the Supreme Court, the International Convention and the judicial documents from the courts. According to Chinese Law, the ways of judicial supervision in China mainly comprise recognition the validity of the arbitral agreement in foreign cases, setting aside the commercial arbitration awards, denying enforcement of foreign arbitral awards and referring to arbitration again. This part specially points out the difference between the deny...