Under The New York Convention Had Withdrawn Foreign Commercial Recognition And Enforcement Of Arbitral Awards

A commercial arbitral award, if annulled by the court in the country where it was made, is not effective at all, so it cannot be recognized and enforced in other countries either. However, along with the development of the globalization of economy and trade, the old international commercial arbitration system cannot satisfy the new emerged need. Some countries have begun to challenge the traditional opinions and practices by making awards conflicting with those traditional theories in a few arbitral cases, such as France. Besides, in the world-famous Chromalloy case, the American court also implemented an award annulled by Egypt court. The theoretical and practical circles of international commercial arbitration have been shocked up by those practices. This paper is about to start from the reason of the chaos and relevant theories so as to further explore this issue. On the deeply understanding of the reasons of the debates, feasible suggestions would be named and analyzed in order to perfect China’s corresponding legal system.According to the traditional view of arbitral Jus soli, the effect of arbitral award is attached to the domestic law of certain country, which is so-called "country of origin". If the country annuls the award, it is not effective. It cannot be enforced not only in that country, but also in other countries. Notwithstanding, because the wordings and specific provisions of "Convention on the Recognition and Enforcement of Foreign Arbitral Award"("New York Convention") in1958are still ambiguous, France, Luxembourg, Austria, the United States and other countries have started to recognize and enforce annulled foreign commercial arbitral award under the influence of new arbitral theory of "delocalization". Those practices, especially the Hilmarton and Chromalloy, have reflected different understanding of the relevant provisions in New York Convention by different countries. Simultaneously, they also caused severe debates in both international theoretical and practical circles, which mainly focused on the issue of "the enforceability of annulled arbitral award" and specifically involved the theoretical basis for enforcing annulled arbitral award, the application and interpretation of New York Convention, the necessity of revocation system and so on.This paper is about to analyze the definition, judicial practices of different countries and theoretical basis of the enforceability of annulled foreign commercial arbitral award, under the legal system of New York Convention; and then combining the respective status quo of China, put forward the suggestions for the improvement of China’s recognition and enforcement system of annulled foreign commercial arbitral awards. The paper is divided into five chapters:The first chapter is to clear and clarify the definition and scope of the foreign commercial arbitration governed by New York Convention, and further introduce the definition and value of the revocation system and non-enforcement system of commercial arbitral award, combing the Article V of New York convention, to analyze the special relations between the two judicial supervision system.The second chapter is to interpret and explore Article V and Article VII of New York Convention, so as to make clear the real meaning of the convention.The third chapter is mainly to introduce the domestic legislations and judicial practices on the issue of recognition and enforcement of annulled foreign commercial arbitral award by the party members of New York Convention, for analyzing their understanding of abovementioned articles in New York Convention and the international practical trend on this issue.The forth chapter is to deeply analyze the theoretical basis for this issue, including the impacts by the source of effect of the commercial arbitral award, the theory of "delocalization", and the theory of primary jurisdiction and secondary jurisdiction; what’s more, to compare and analyze the advantages and disadvantages of recognition and enforcement of annulled foreign commercial arbitral award, for uncover whether there are some solutions for overcome the adverse effect of recognition and enforcement of annulled award.The chapter five is to firstly introduce the main views in Chinese academic circle and the regulations and practical attitude of Chinese government on this issue, then combining the conclusion of chapter one, chapter three and chapter four, to conclude the defects of China’s present regulations and practices and to put forward certain suggestions for improvement of China’s relevant legal system and guidance for the possible judicial practice in future.