A Study On The Recognition And Enforcement Of An Annulled Award

In traditional opinions and long-time practice, when an arbitral award is annulled by the authority of the place of arbitration, it won't be valid any more, and can't be recognized and enforced by other countries. However, couple with the development of the world's economy and commerce, both benefits and frictions are more and more. The old regime of the international commercial arbitration can't satisfy today's requires. Several countries have challenged the traditional opinion and practice in some arbitration cases, in which the judges run counter to the ones before. France is the most conspicuous. It has recognized and enforced several arbitration awards which had been annulled by other countries. In the famous "Chromalloy" case, the court of the US also enforced the award annulled by Egypt. These judgments have arisen great disputes. This dissertation will analyze this problem from the disputes' origin and theories, and bring forward the author's personal suggestions.This dissertation comprises four chapters: Chapter 1 mainly introduces the origins of the disputes. In a very long time, the dispute whether the annulled award could be recognized and enforced is not existent because it's surely invalid. We can get it from the domestic legislation and conventions. It has been generally accepted by the international community that the authority of the place of arbitration has the exclusive jurisdiction on one party's application for the annulment of the arbitration. In the recent period, several countries' arbitration practice has shocked the traditional opinions. The Most famous one is the "Chromalloy" case.Chapter 2 mainly discusses the focus and origins of the dispute and the relevant theories. The focus lies in the fifth article, first paragraph of the "New York Convention" - Is the word "may" is authoritative or enforceable? If it is authoritative, the courts that have been applied for enforcement can decide discretionarily whether to enforce the annulled award or not. However, if it is enforceable, the annulled award has no possibility to be enforced. My personal opinion is that "may" here is authoritative, and the courts applied for enforcement can decide it according to their domestic laws. The aim of the countries to dispute the true meaning of "may" is to safeguard its own economic and judicial benefits. Going with the dispute, many theories appeared. The most challengeable one to the traditional opinion is the "De-Localization theory" which maintains that the right to decide whether or not to enforce the annulled award exclusively belongs to the courts in the places where the award is applied for enforcement.In Chapter 3, the author puts forward his personal suggestions on the settlement of the dispute. The origins of the dispute come from the great deal of conflicts in economy, accompanied by the great benefit from the international commerce. The old regime can't satisfy today's requires any more. However, the new regime is impossible to "be built in one day", because the conflicts among the countries are very complex.Therefore, we have to advance step by step. On the basis of the Model Law, the laws and practice of different countries get harmonized. After remarkable harmonization, the New York Convention can be modified or a totally new convention may be made. Finally, authorized from the modified or newly made convention, a supra-national court vested with exclusive jurisdiction will be set up to monitor the compliance of the award. The experience of ICSID can be taken as guidance.From the analysis of the dissertation, we can get that it's time to reform the regime of the New York Convention. However, as the complex conflicts among the countries, enough patience is needed. In this way, our object will be realized step by step.