A Study On The Related Issues On The Nationality Of The International Arbitral Awards

In the practice of modern international commercial arbitration, it is important to make sure the nationality of the arbitral awards, according to which the domestic court has the right to set aside and supervise the arbitral awards made in the same country and other countries also have the right to recognize or enforce the arbitral awards. Among the criterions for differentiating the nationality of the arbitral awards, the geographical criterion has been the main and most important criterion in the current international treaties, many countries'legislation and practice. 1958 New York Convention, the most influential convention on recognition and enforcement, also made the stipulation that the geographical criterion is the first criterion, and the"delocalized"criterion is the supplement for the former to make sure the nationality of the arbitral awards.Thanks to the essential role of the geographical criterion whose essential factor is the seat of the arbitration, which leads to it is necessary for us to discuss the related question about such important issue. For the convenience of the arbitration, several places for arbitration may be involved in the same case, for example, the place for the arbitral tribunal to hear the case, discuss the arbitral award and make the final arbitral award may be different, so the seat of the arbitration discussed in this article just means the one that has the real relationship with the arbitration. So it is very important to make sure the seat of the arbitration which has the real relationship with the arbitration. The geographical criterion is the most important criterion to make sure the nationality of the arbitral awards, and such a criterion is normally embodied by the seat of the arbitration. We can see the importance of the seat of the arbitration for confirming the nationality of the arbitral awards.Although it is publicly known that the geographical criterion has been the most important criterion for confirming the nationality of the arbitral awards in the world, it still exists some different opinions, among which the delocalized arbitration theory is the most often mentioned and discussed. The theory views that the compulsive effectiveness on enforcement of the arbitral awards is not necessarily come from the law of the seat of the arbitration, and the arbitration can be hold independently from the law of the seat of the arbitration, which leads to the arbitral awards don't belong to any special system of law. The article will introduce the generation, development and the substantial content of the delocalized theory, and analyze the theory from the two aspects of theory and practice. Meanwhile, I put forward my own opinion that the real meaning of the delocalized theory intends to cast off the countries'judicial sovereignty and the judicial supervise from the court of the seat of the arbitration, which is not practicable. In the mean time, the so-called practice of the delocalized theory put forward by the advocates of such theory is not the result of the theory but the result of the legislation and judicial practice of the sovereign countries, who in a degree or within a limit permit the parties concerned of the arbitration agreement to agree on excluding the supervision from the court of the seat of the arbitration.Considering of the importance of the geographical criterion and the seat of the arbitration, the article will introduce the related prescriptions and judicial practice on such issue and point out the problems existing in the legislation on confirming the seat of the arbitration in China. According to the practice of ICC and CAS making arbitral awards outside the country in which the arbitral institution locates as well as the related legislation of China, the article will analyze the character of the arbitral awards which are made by ICC and CAS. Besides, out of the current situation that several law systems exist in China, such as that of Mainland, Hong Kong, Macao and Taiwan, they have to recognize and enforce the interregional arbitral awards due to their different traditions on legislation and the reason of history, which will involve the issue on identification of interregional arbitral awards as well as the actual situation on recognition and enforcement by each other of the several law systems.The article attempts to put forward some advice for China's related legislation and judicial practice of the issue on the nationality of the international arbitral awards by the foregoing analysis, if so, it will be worthwhile.