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Study On The Reservation Of Public Order In Recognition And Enforcement Of Arbitral Awards

Posted on:2016-08-07Degree:MasterType:Thesis
Country:ChinaCandidate:X J ZhaoFull Text:PDF
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With the rapid development of economic, international commercial arbitration is becoming more and more important. It is mainly used to solve international commercial disputes arising from the international economic and trade activities. The advantage of international commercial arbitration is confidentiality, efficiency and convenience. So, it is very meet the requirement of international commercial disputes. The key point of international commercial arbitration is the recognition and enforcement, which directly determines the result of the decision usefulness and the rights and obligations of the parties. Reservation of public order in the application of the arbitration award mean that one of the parties apply for the acknowledgment and enforcement of an arbitral award to a court and if the count found that the recognition and enforcement of the arbitration award will damage their own public interest, can refuse to acknowledge and execute the arbitral award. As an effective reason refused to admit and enforce the arbitration in international commercial arbitration, reservation of public order has been closely watched. However, the differences between countries makes the uncertainty of reservation of public order is expanding and the reservation of public order often become the focus of discussion.Public order is an elastic concept and the applications in the world also have no unified standard. But, the role of public order reservation in the world is a judicial supervision means and an important way to safeguard national interests and social interests. In much representative international treaty, there are provisions about reservation of public order. Throughout regulations and judicial practice about the reservation of public order in the world, we can see the court present a cautious attitude on the acknowledgment and enforcement of foreign arbitral awards. Some countries separate international public order from domestic public order principle and only apply the international public order to foreign commercial arbitration. There are rules explicitly pointed out that the international public order can be divided into international obligations, fundamental rules and rules of public order. It manifests the public order gradually specific in the international development trend. Our law call the public order the social public interests, the judicial practice also have the cases about the reservation of public order in recognition and enforcement of arbitration award. However, the use of the reservation of public order in our country has many problems. Such as the connotation of public order is fuzzy, applicable standards are not unified, decision is lack of explanation and the judicial conflicts are serious.The purpose of the article is analyzing the applicability in recognition and enforcement of international commercial arbitration based on the theory of reservation of public order. By investigating the international treaties and national legislation study the international trend of reservation of public order and indicate the direction of reservation of public order. When we conduct judicial review about foreign commercial arbitration in our country, we should take an objective standard. Distinguish the international public order and domestic public order and we must oppose local protectionism, set up correct concept of reservation of public order.
Keywords/Search Tags:Arbitration Awards, Recognition and Enforcement, Public Order Reservation
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