Judicial Review Of International Commercial Arbitration By Public Order

International commercial arbitration is a popular mean of dispute settlement because of its characteristics and advantages that it is based on voluntariness, and is simple and convenient. Public order review is necessary because arbitration is a private dispute settlement procedure to make sure it is fair and square, to establish obligation bottom of nation against outside world. Public order regime has some unique attributable property: it is vague and indefinite, to give a definition is a hard task; it is extremely abstract and general, can be stuffed different contents according different time; it is changeable varying to time and place.Literal expressions of public order are colorful, including public order, good custom, public policy, fundamental value of legal order etc. China used"public order or good custom"when referring to public order in 1918, which is now still used in Chinese Taiwan, while Hong Kong region uses"public policy", Macao"public order", Chinese Mainland"social pubic interest"and"national and social interest". Public order regime is widely accepted. It is generally contained in national arbitration laws of most countries. A widespread practice in 20th century is inserting a public order clause while drafting an international convention. In commercial arbitration area, a huge amount of global and regional conventions have the public order review provision.Public order consists of substantive and procedural aspects. Substantive aspects used in practice include overwhelming law rules or security law, prohibition of penal damages, anti-bribe and anti-corruption. Procedural public order include prohibition of deception and embezzlement, natural justice or due process, prohibition of obvious of ignorance of law, denial of resjudicata of domestic judgment and ruling, and impingement of domestic judicial authority. The public order in judicial review is first of all domestic one of the country who exercises judicial review power. The public order provided in article 5 of New York Convention is"the public policy of that country",i.e. the public order where an arbitral award is sought to be enforced. But it can also be the one of another country, a foreign country.There exists a distinction of domestic policy and international public policy. The former indicates principles and rules which must be preserved in domestic background, while latter means those in international background. Recently writers put forward the conception of transnational public policy or world public policy, which is narrower in application than domestic and international public order, is identical in international level. As to in what circumstance to use public order, there are subjective public order theory and objective public order theory.There exists a restraint tendency in the application of public order. In many countries, pro-enforcement bias policy is adopted to support arbitration. The means used to narrow the application of public order include distinction of enforcing rules and public order, providing right waiver rule and prior challenging requirement, establishing requirement concerning effect level, only those violating law severely can be regarded as violating public order. Those violations of laws which are minor and only constitute flaws or have not impaired justice can not be regarded as violations of public order.China attaches great importance to public order, and provides for judicial review based on public order of many affairs, which concern application of law, procedural affairs and arbitral affairs. But the expression of articles 70 and article 71, i.e."proving the arbitral award which contain a foreign element has one of the circumstances provided for in the first section of art. 260 of Civil Procedure Law", give impression of refusing to adopt judicial review based on public order of domestic arbitration, because public order review is contained in the second section rather than the first section.In practice, Chinese courts are cautious about the application of public order in judicial review of arbitration. There are only two cases in which the seized court refused to recognize and enforce arbitral award. While exercising judicial power, Chinese courts should use standard suggested by objective theory, distinguish between domestic and international public order, emphasize need of serious result of disadvantage, combat local protectionism, continue to maintain reporting mechanism, and adopt discretionary regime instead of stiff regime of recognition and enforcement.