The Public Policy In Recognition And Enforcement Of Arbitral Awards In International Commercial Arbitration

As the international economic business have become increasingly frequent, a growing number of parties choose to settle the dispute by international Commercial Arbitration. Recognition and enforcement of the Arbitral award is one of the core issues of commercial arbitration system, which determines the autonomy of the party can be achieved or not , the value of an arbitral award can be attained or not. The public policy is setted in The New York Convention. It provides the foundation to refuse recognition and enforcement of the award without a clear definition, but put the issue to all national courts. therefore, the State courts retain the final decision of the recognition and enforcement of the award implementation .As the situation difference between nationals, there is a huge difference in the understanding of public policy, for the party who apply for recognizing and enforcing arbitral awards , there is no doubt with the doom of the risk, as if hanging a sword in his head. However, the public policy can maintain its vigor in the field of international commercial arbitration, it is truly because of its vague nature, as a powerful weapon to protect their fundamental interests.This paper discusses the public policy in the Recognition and Enforcement of Arbitral Awards, by the case since China's adding "New York Convention"in 1987, which is the first time refusing to recognize and enforcement of foreign arbitral awards by the reason of public policy. There are four parts, to a detailed analysis in order to explore the rational use of public policy system.The first part is the detailing of the case of Yongning. Present the Republic of Serbia Hemofarma & nbsDD, MAG International Trade Company, Liechtenstein Sura Mody Media Limited and Yongning's development process of the dispute, the Paris Court of Arbitration of International Commercial Arbitration's views and the final decision. After the application of the foreign parties to the intermediate People's Court and the High Court, they made an referrals to the Supreme People's Court to refuse to recognize and enforce the foreign awards otherwise its violated our public policy. Finally, the Supreme People's Court approve the consent. From the development of the case , we drawn the focus out.The second part is the theory to support public policy. We describe it as follows: First, the concept of public policy. Public Policy's nature itself determines that it is hard to give a precise definition. Second, the theoretical development of public policies. Public policies is a system of private international law, it is developed accompanying the emergence and the development of private international law. International commercial arbitral award is traditional reason used to refuse recognition and enforcement of foreign judgments, it has great value. Third, the distinguish of international private law and the public policy in one country. Public policy used in one country is in general only applicable in domestic law, the use of public policy on the international private law must be related to the fundamental interests of all mankind, beyond national borders. National courts in adjudicating foreign-related civil and commercial cases in the process , public policy should be applied, "the sense of public policy in private international law" rather than "public policy within the country." In practice, it is necessary to distinguish between the two pairs, avoiding abusing. Fourth, the application of public policy standards , there are two different theories, subjective and objective, and in practice, there is tendency that countries choose to an objective.Part III discusses the public policy in the recognition and enforcement of international commercial arbitral awards in the specific application. According to the relevant State practice may be considered a violation of the recognition and enforcement of arbitral awards to the country. The situation of public policy includes: violations of laws, procedures illegal and unjust arbitrator.This article focuses on the fourth part, which discusses the status and the judicial practice of Recognition and Enforcement in China from two sections: section I, legislation and the status of participation in international conventions and the comprehensive proposal. In domestic legislation, we can see"public policy"content in legislations of our country for a long history. Most of the public policy expressed as"social interest". We have seen the inadequacy of our legislation through a series of domestic legislation, such as the simple and vague definition of public policy; applicable standards are not uniform and so on. So, we must draw on advanced foreign experience and improve the legislation. Section II, China's Recognition and Enforcement of Arbitral Awards in the practice. By analyzing three cases of judicial practice, especially in conjunction with public policy, as China's only refuse to recognize the foreign award, and with the public interests, the only rejection to the implementation of foreign-related arbitration award , we analysis obtained in these two cases, our public policy reasons for the refusal are all related to the fundamental interests of a country's interests, such as the national judicial sovereignty, and the whole society truth habits, rather than a country's individual interests, special interests . The practice of public policy has provided valuable experience.We must constantly improve themselves, but for international commercial arbitration commercial arbitration services, and promote the cause of China's commercial arbitration continuous improvement and development.