On The New York Convention "non Award" Of Recognition And Enforcement

In April,2009, according to the paragraph 1 of article 1 of New York convention, Ningbo Intermediate People's Court of Zhejiang Province determined that the arbitration of the international chamber of commerce commission, which was made in Beijing, is a "denationalized arbitration" and shall be recognized and executed in accordance with New York Convention. The court's verdict attracts much attention. Discussing upon this case and the early Zublin case, scholars and legal workers have made an extensive discussion about the nature of those arbitrations made in China by foreign arbitration institution. Among them, some agreed with the opinion of the court, some disagreed, and the more partly support and partly against. This paper, based on the implication of "denationalized arbitration" in New York Convention and law and legal practice in China, tries to answer how to classify these arbitrations made in China by foreign arbitration institution.This thesis is divided into four chapters. In part one, I mainly discussed within what is a " denationalized arbitration ".Firstly, I want to find out the real meaning of "denationalized arbitration" though the formulation history of New York Convention. Secondly, after reading law of other countries and through comparative study, I try to find out the probable forms of existence of in China. Lastly, through discussing the reasons why "denationalized arbitration" is formed, I inspire readers thinking about whether "denationalized arbitration" can be applied in China and if so, what will be its probable forms.The second part is important to the whole thesis. In the first section, based on the existing legislation of China, I explained in detail that the "denationalized arbitration" shall be used in China. On one hand, because of China's unique arbitration classification standard, the arbitration made in China by foreign arbitration institution can't be Chinese arbitration; On the other hand, the arbitration can't be defined as foreign arbitration since the New York convention applies the "field standard "when judging a foreign arbitration. However, if the above award needs to be acknowledged and enforced in China, there must be some legal basis. Fortunately, the "denationalized arbitration" standard under the New York convention can be used to contain all the awards that can't be recognized as national award. Based on the purpose of the acknowledgement and enforcement of the arbitration award, the award made in China by foreign arbitration institution can be identified as the "denationalized arbitration" under the New York Convention. In the second section, I object the dissenters'opinion, and point out that the reasons provided by them are not sufficient to support their opinion.In the third part, through introducing the two cases, I prove that identifying the above award as "denationalized arbitration" and acknowledging and enforcing it in accordance with the New York Convention has been accepted by Chinese courts. As to the fourth part, I specifically talked about the advantages of ruling the award made in China by foreign arbitration institution as the "denationalized arbitration" and acknowledging and enforcing the award according to the New York Convention. These advantages give us more proof that ruling such award as "denationalized arbitration" is a right thing. In the meantime, go back to the judicial practice in our courts. At the beginning, I point out that the judges didn't give enough reasons when ruling the above award as the "denationalized arbitration ". Finally, I called on the Supreme Court issued relevant judicial explanation as soon as possible, helping these awards get acknowledgement and enforcement more smoothly in China in accordance with the "denationalized arbitration" under the New York Convention.