A Study On The Recognition And Enforcement Of Annulled International Arbitral Awards

In traditional opinion, arbitral awards attached themselves to the national law of a certain country. When it had been annulled by the authority of the place of arbitration, the arbitral award was not existent, so it cannot be recognized and enforced not only by the country of the place of arbitration, but also by other countries. But in practice, arbitral awards which had been annulled by other country were recognized and enforced in France once and again, and similar cases took place in other countries such as USA, Belgium and Austria etc. Moreover, the expression and stipulation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards provide possibility to enforce annulled arbitral awards. After the arbitral award of the case (Chromalloy Aeroservices v. Egypt ) was annulled by the court of Egypt in1997, it still recognized and enforced by the court of USA and France in 1998. The experts of arbitration law debated drastically on the problem of "enforceability of annulled arbitral awards"from several aspects include the standard of enforceability, application and interpretation of New York Convention and maintenance or abolishment of the legal system to set aside arbitral awards. This dissertation will analyze this problem from practice, legislation and theory, and then provide some legislative suggestion concerned with our legal system to set aside arbitral awards combined with our legislation on this problem of enforceability of annulled arbitral awards. This dissertation comprises four chapters: Chapter 1 mainly introduces the legal system to set aside international commercial arbitral awards. It will simply provide the definition of cancellation of arbitral awards, its difference from refusing to enforce arbitral awards and the reasons of cancellation of international commercial arbitral awards. Chapter 2 concerns the practice and legislation of enforceability of annulled arbitral awards. Firstly it will introduce the practice of German, French and USA, and then analyze the standard of enforceability of annulled arbitral awards, and lastly discuss the pertinent stipulation of New York Convention in detail. Chapter 3 focuses on the theory of enforceability of annulled arbitral awards. This chapter starts with analysis of enforceability of annulled awards from the effectiveness source of arbitral awards, and this study includes that the arbitral agreement is the direct effectiveness source and the lex arbitri is the indirect source, the annulment of arbitral award doesn't certainly maintain effective out of the place of arbitration. Furthermore, this chapter analyzes the theory of denationalization. By the legislation and practice of international commercial arbitration, the author holds the view that this theory hasn't been adopted universally, it's doubtful whether the arbitral procedure can exclude the application of the mandatory of lex arbitri, so enforcement of a-national award reference to New York Convention doesn't benefit to the consistency and authority of the convention. Finally, this chapter discusses the maintenance or abolishment of the legal system to set aside arbitral awards and the development of this legal system in future. Chapter 4 mainly investigates our legislation on the problem of enforceability and then presents some legislative suggestions on the perfection on Chinese arbitration legislation concerned with the legal system to set aside arbitral awards with foreign elements. By reference to Chinese legislative stipulation, on the one hand, the annulled arbitral awards cannot be enforced in our country; on the other hand, a-national awarddoesn't appear in Chinese at all. By reference to the practice in USA and France,this chapter then presents some legislative suggestions in order to avoid the case that other countries enforce the arbitral award annulled by the Chinese court.