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Comparative Study Of Recognition And Enforcement Of International Commercial Arbitration Awards Between China And U.S.

Posted on:2011-01-03Degree:MasterType:Thesis
Country:ChinaCandidate:D ChenFull Text:PDF
GTID:2166360305957286Subject:International Law
Abstract/Summary:PDF Full Text Request
Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), by whose decision (the "award") they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides. Arbitration is most commonly used for the resolution of commercial disputes, particularly in the context of international commercial transactions. Since the mid-1980s the volume of global trade has steadily increased. The practice of international arbitration has become a substantial service industry that has attracted the attention of large and small law firms in many countries, either as a service to their existing clients or as a useful means of establishing a presence in overseas jurisdictions. 1 China's decision to open itself to outside world coincided with this dramatic increase in the globalization of the world economy. After thirty years'development, China is going to become the second largest economy of the world within a few years. Consider the increasingly frequent of Sino-US trade, a comparison study of recognition and enforcement of international arbitral awards in the U.S. and China is significant.International arbitration has become the established method of determining international commercial disputes.1 International arbitration is praised for its freedom to choose a neutral and competent arbitrator, the autonomy it provides to parties, the arbitrators'technical expertise, the confidentiality of the proceedings and it precludes the uncertainty of procedures in foreign courts. Recognition and enforcement of international arbitral award in foreign states is the last step and also the most crucial step of the international arbitration. To have an effective international arbitration system, it is necessary to link up national systems of law and to do so by means of a treaty or convention, which will provide for the enforcement of arbitration agreement and arbitral awards by the national courts of those countries which are parties to that treaty or convention.Both The United States and China are members of the New York Convention. However, common membership does not necessarily guarantee a unified application of the terms of the convention.1 Domestic courts and implementing laws play significant roles in recognizing and enforcing arbitral awards under the New York Convention. An understanding of domestic legal sources and court system in the United States and China is essential to conducting a comparative study on the application of the New York Convention in the two countries.In law and in practice, adopt different approaches towards domestic arbitration award versus non-domestic or international awards. In general, domestic awards are reviewed more closely by the courts. Both countries are the contract states of the New York Convention, but construe the provisions differently. The New York Convention has much broader application in the United States. It is applicable not only to awards rendered outside of the United States, but also to non-domestic awards rendered within the U.S. The United States has much longer period of statute of limitation for the recognition and enforcement of arbitral awards. The period provided by Chinese law is too short.The general attitude towards foreign awards is more pro-enforcement in the United States, no matter the awards is rendered in favor of the American party or in favor of the foreign party. Chinese courts are often subjected to criticism because they are not as pro-enforcement as the U.S. courts do. But current China arbitration laws, and CIETAC Rules, are now in line with international practice and the efficiency and effectiveness of the process will continue to improve. Problems do remain however, including with enforcement of awards in China due to a weak and undeveloped judiciary, but there have been noticeable improvements, particularly in relation to the People's Supreme Court's overall supervisory role.
Keywords/Search Tags:International Commercial Arbitration Award, Recognition and Enforcement, "New York Convention"
PDF Full Text Request
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