"non-domestic Award" Recognition And Implementation Issues

In the 1950's and 1960's, the Denationalization Theory first emerged in international commercial arbitration along with the trend of global liberalization of the arbitral system, which broke the traditional "Theory of the Seat". The proponents of denationalization claimed that "international arbitration should not be restrict by the mandatory procedural law of the forum, and should theoretically be able to be detached from the country of origin, and still be effective and executable." The scholars all over the world hold different opinions about this theory that caused many disputes and more attention. As a result of the trend of denationalization of the international commercial arbitration, the recognition and enforcement of the denationalized arbitral awards play very important role in the existing and development of this Theory. Therefore, this thesis try to make clear that the denationalized arbitral awards are feasible both theoretically and practically by analyzing this theory both in theoretical and practical aspects together with the introduction of legislation and judicial practice of different countries in the world. And the conclusion is that even as a theory with many flaws and not widely accepted, the Denationalization Theory matched the essential characters and features of the arbitration and fulfilled the need of development of international commercial arbitration towards a new period.Moreover, we faced many irresolvable problems during the past decades in our judicial practice of commercial arbitration. That's all because of our incomplete arbitration law system and the conservative attitude toward the foreign arbitral awards. Then the process of consummating this theory helps us to turn to the legislative and judicial problems that need to be solved urgently in Chinese arbitral system, while inspiring us to break through the existing obstacles by taking advantage of the merits of the Denationalization Theory.This thesis consists of 5 chapters. The basic opinions of the Denationalization Theory are expatiated in the Introduction and the first chapter, which include the origin, the development and the features of this Theory, and the analysis on figuring out several relevant confusing concepts. The thesis comes to some conclusions on the basis of discussion about the disputes of the Denationalization Theory. In the second part, the thesis concerns about the denationalized arbitration by analyzing respectively several key factors which influence the recognition and enforcement, such as the nationality of the arbitration, the right of setting aside and the judicial supervision. The thesis further discusses the feasibility of the recognition and enforcement of the denationalized arbitration in the third chapter. The proponents of Denationalization Theory usually took the Article 1 of the "New York Convention" as their legal support. In that case, a profound analysis about the concept of Article 1 of the "New York Convention" will be found in this chapter. At the same time, the thesis disagrees with some scholars who described Denationalization Theory as an "imaginary dream". Several typical judicial practices around the world will be enumerated for this purpose. The forth and fifth parts are the inspirations that Denationalization Theory brings to the amendment of Chinese arbitral system. The condition of recognition and enforcement of foreign arbitration in China and the existing problems are analyzed here. Based on the analysis, the thesis concludes some suggestions that may be referenced when amending the Chinese Arbitration Law.