Judicial Review On Procedural Issues In The International Commercial Arbitration Awards

This paper gives an analysis of the limits and criteria in judicial review by the courts on procedural issues in international commercial arbitration awards. The statistics as collected in relation to the rate and reason of rejected enforcement of any awards in international commercial arbitration show that no notice duly served, no proper representation, impartiality in appointment of arbitrators or in arbitration procedures are the main reasons for rejected enforcement of such awards. What’s more, judges have a lot of discretionary of these reasons. It is necessary to research this topic.Procedural Defect I:no notices duly served. Such notices include the notices for appointment of any arbitrator or in relation to arbitration procedures. The information provided by such notice includes appointment, separate appointment or reappointment of any arbitrator, organization of arbitration tribunal and register of arbitrators. There are no provisions in any legislations or conventions regarding recognition of "notice duly served". Such issue may rely more upon judicial review by interpretation on a case-by-case basis rather than by enactment. The relevant cases heard in China show that the courts generally give a two-step test on "notice duly served", namely "duly served" and "notice". It is acknowledged that the courts should give more open mind to the over short term for appointment of arbitrators while the courts should pay focused attention to Rogue Defense in violation of the principle of Good Faith.Procedural Defect Ⅱ:no proper representation. The arbitration tribunal must ensure all parties concerned have the rights to give proper representation. If it fails in doing so, the award will be revoked or rejected to be enforced by the courts. If no notices in relation to arbitration procedures provided, it is certain that the parties concerned have no proper representation before the tribunal. Additionally, no opportunity for proper representation provided, or rights to give any proper representation deprived, are also common procedural issues in international commercial arbitration. However, no proper representation may be resulted from the parties concerned by themselves, e.g. failure to participate in the arbitration or failure to give any representation arising from negative acts. So the courts should give a distinction between the defense against "no proper representation" and violation of Good Faith on a case-by-case basis with a more tolerable and supportive opinions when it carried out any test on "no proper representation"Procedural Defect III:impartiality in appointment of arbitrators or in arbitration. procedures. Such impartiality may be classified as follows:a) organization of arbitration tribunal in contravention of the agreement between the parties concerned; b) organization of arbitration tribunal in contravention of any applicable laws regarding arbitration in the jurisdiction where the arbitration is submitted; c) the arbitration procedures in contravention of the agreement between the parties concerned; or d) the arbitration procedures in contravention of any applicable laws regarding arbitration in the jurisdiction where the arbitration is submitted. The courts should give proper respect on the agreement concluded by the parties concerned and provide reasonable protection to the choice by such parties. However, the courts must also carry out any review whether the agreement by the parties are in compliance with the mandatory laws. If any deviation existed, the courts shall refuse to recognize the choice by the parties concerned. More specifically, the courts should carry out the review whether the terms and conditions in relation to organization of arbitration tribunal are in violation of due procedures or whether the parties concerned carried out any negative acts like waive of rights of objection etc.Therefore, the courts in China may take three-step test. Step I:determine whether the circumstances to be reviewed are the procedural matters; Step II:determine whether this kind of procedural issues are serious procedural issues which cause material damage to the procedural rights of the parties concerned; Step III:determine whether the parties concerned waived the rights of objections. If all three-step tests are justified, the courts may refuse to acknowledge and enforce the award.