International Commercial Arbitration Dilemma And Outlet Of An Arbitration Award Shall Be Final And Binding

It is well known that finality of arbitral awards is one of the distinctive features of arbitration during the development of international commercial arbitration. However, linked with expanded international intercourse and regarded arbitration as the first avenue of relief to international commercial disputes, more and more oppugners about finality of international commercial arbitral awards appear. So different disposals raised by different scholars in finality, contrary to the purported and traditional virtues of arbitration. Thus, men of insight have raised various opinions about reform to finality of international commercial arbitral awards, and each has gained some support as result of different civil legislation. Therefore, the dissertation expounds the issue in a systematic way through historic development and value analysis perspective in a comparative way with the aim to make meager contribution to the understanding of finality of international commercial arbitral awards.The dissertation develops this thesis in four sections apart from introduction as follows:Partâ… :the Value in History Development of Finality. It outlines the development route of the system in different times, concludes the different values of finality in traditional society and modern society, and introduces it as advantage of arbitration in history. Then, the author points out that finality enter into a dilemma, that is to say, absence of equity. It analyses that the reason of arbitration as the first avenue of relief to international commercial disputes mainly relies on its impartiality and easily recognition and enforcement, based on it explores that finality is no longer a absolute advantage compared with other means in international commercial disputes settlements. Further more, it expresses the necessity of reformation to finality and remedies to absence of equity. Partâ…¡: the Inability of Existing Remedies to Equity. It mainly analyses contemporary the judicial review of international commercial arbitration of different countries, explores the subjective and objective reasons of judicial review, tells that judicial review can not resolve the absence of equity, but destroys arbitration. It undermines advantages of arbitration, damages authority of arbitral awards, makes arbitration depend on it.Partâ…¢: the Feasibility of Arbitral self-sufficient. There are two main factors. One is the feasibility in theory. It indicates arbitration can make its own way without judicial review, that is to say, judicial review is not the necessity. Then, it develops international commercial arbitration should be an outcome of civil society, and it should be separated from political state. Civil society should be operated aparted from political state unless it infringes the jus cogens. Another one is the development in practice. There are already some practices of challenges to finality, including civil legislation and arbitral rules, such as English, Swiss, Belgian Swedish, ICSID review system, and "appeal court" of international merchandise arbitration.Partâ…£,the Concrete Assumption of Resolving the Dilemma Relying on Arbitral Self-sufficient. It acknowledges the existing system of finality, accompanied with judicial review. This is the customary practice and cannot be cast down rapidly. It will be exist for a long time until new system matures. Then, it suggests a new system, foundation of "appeal court" of arbitration "opt-in" by parties. It should be the ideal mode and the supreme object of international commercial arbitration. The international law to domestic law then again back to international law is becoming the cycle of the development of the system.