Empirical Research On Judicial Review Of Arbitration Awards

As a parallel way of solving disputes with litigation, arbitration developedrapidly for its characteristics of fastness, economy and confidentiality, particularly inthe commercial sphere. To enforce an arbitration award in a foreign country is ofteneasier than to enforce a judgment of the court in many countries. However, arbitrationis governed by laws and subjects to a judicial review in all legal systems around theworld. Although many useful suggestions had been put forward in the theoreticalcircles, there is lack of positivism analysis of current arbitration judicial reviewsystem in China from the perspective of judicial practice. As a legal practitioner, theauthor focused on the legislative background and judicial review experience of theChinese courts. After an analysis of the judicial review system in China, suggestionsare provided for improvement.In Chapter One this thesis precedes the research to the legislative developmentand background of judicial review system of arbitration awards in China. The doublejudicial review includes the setting-aside and refusal of enforcement. The separateregimes for domestic and international arbitration in China are known as double-trackcensorship, because the standards applied in the judicial review for domesticarbitration awards and international arbitration awards are quite different. The twokinds of arbitration awards are distinguished according to the nature of the arbitrationinstitution in the Civil Procedure Law. But in Arbitration Law, the criterion is whetherthe arbitration is foreign-related. Legislation of judicial review of arbitration awardsin China lagged due to the special historical background and national conditions.However, improvement and supplement to judicial review system had been made bythe supreme people’s court over the past years.Based on the empirical research concerning on discovered problems whenShenzhen Intermediate People’s Court practices cases of the setting-aside and refusalof enforcement, this thesis points out the following four plights for current judicialreview system of arbitration in China.1. The misuse of the parties for the setting-aside and refusal of enforcement has caused serious delays in the execution ofarbitral awards.2. Even there are distinction between domestic and foreign-relatedarbitration legislation in our country; the different standard on the Civil ProceduralLaw and Arbitration law created chaos in practice.3. China’s legislation on domesticarbitration enforcement executes the physical examination in "decision according tothe evidence is fake" and "the other party to hide the evidence enough to affect theimpartiality of the award"; however the lack of the unified standards has made thedifficulties in the judicial practice.4. The arbitration judicial review cases reflect theserious deficiencies on the supervision of the arbitrator in China.Chapter Three is about the perfection of the judicial review mechanism of ourcountry. Comparing with the system of judicial supervision of the other countries, thepurpose is to absorb the advanced experience and perfect our law. The thesis tries toprovide a deeper insight by suggesting an appropriate review standards and makingsome comments on corrections to those that are not reasonable and perfect and makesome amendments on the parts that are insufficient in laws.