The Study On The Recognition Of International Arbitral Awards

The function of international commercial arbitration cannot be act for in handling international commercial disputes. Currently, arbitration have been one of the most important means in solving the dispute occurred in transnational economic trade. In this several decades especially the years after the establishment of the New York Convention, there has been a rapid development in the area of international commercial arbitration, because more and more people have chosen arbitration as the unique dispute resolution method in their transnational commercial contract. Because of the international characteristics of international commercial arbitration, the giving and enforcement of an arbitral award could take place in different countries, thus, the phenomenon that an arbitral is often recognized in the territory of another State. Owing to above circumstance, the recognition of international arbitral awards is chosen as the main subject of this article. According to the analysis of problems occurred in theories and practice, some advice, which will be useful for the recognition of arbitral awards in our country, has been put forward in this article.This article include five chapters:In this article, the whole discussion of the recognition of international commercial arbitral awards is based on the explanation of the relationship between the recognition and enforcement of commercial arbitral award. Therefore, it is discussed in the first part of this article. It is believed that the recognition and enforcement of an arbitral award not only are two different concepts in theory butalso represent two successive procedure stages in practice. In other words, an arbitral award should be recognized before its implementation in any country other than the one it originated from. However, much attention should be paid to the fact that the recognition of an award is not the precondition of its enforcement.The second part of this article is composed of the theories of the validity and nationality of arbitral awards. These theories are believed to be the foundations of recognition of arbitral award. The possibility that an arbitral award can be recognized comes from the validity of international commercial arbitral awards, including enforceability and procedural finality. As they are endowed with different nationalities, international commercial arbitral awards can be divided into foreign arbitral awards and native arbitral awards, among them only the foreign arbitral award should be recognized before it is enforced in a country different from the country of origin.The procedures and conditions for the validity of an award adopted by countries when they decide to recognize the award are compared and evaluated in the third part of this article. It is pointed out that in order to make the recognition of the arbitral award convenient, the provisions of the New York Convention should be adopted by countries all around the world when they deal with a foreign arbitral award. Thus, the system of international commercial arbitration will get a progress and the right of parties will be ensured.The grounds for refusing to recognize an international arbitral award are one important part of the recognition of international arbitral award. Seven exclusive grounds for refusing to recognize an award have been enumerated in the New York Convention. In the forth part of this article, by analyzing some typical model cases theoretically and practically, every provision of article 5 of the New York convention is discussed one by one. It is pointed out that it is a trend, which answer for the development of the system of the recognition of international commercial arbitral award, that while some grounds, such as lack of jurisdiction, are interpreted loosely, others, such as invalidity of award, are interpreted strictly.On the above analytical foundation, seven suggestions, such as revising therelated statutes, simplifying procedure rules and self-criticizing " the report system" etc., have been put forward in this article. The aim of these suggestions is to resolve the existent problems in our lawmaking and judicial action.