A Study On The Annulled International Commercial Arbitral Ilj^ivards And Recognition And Enforcement Of Annulled International Commercial Arbitral Awards

With the rapid development of the international trade, people seek for economic benefits, which also brought some inevitable commercial disputes between them. When the parties can not settle the disputes through consultation on their own way, the arbitration as a proper dispute settlement mechanism is playing an increasingly important role. Arbitration, which enjoys the nature of both the contract and judicature, cannot fulfill its role without the support of laws. The national court can supervise the arbitration and also the award in many ways. The withdrawal of the award is one of such ways and it is also the most important way. The problem of the recognition and enforcement of annulled arbitration is still concerned by most scholars. Based on the backgrounds, the author take national practice of the recognition and the enforcement of annulled international commercial arbitral awards as the foundation, then have a further study of the theory, thus put forwards some opinions for the judicial practice of our country.In the first part, this paper puts forward the question and its brief introduction, and then points out the core problem which this article aims to tackle. In the second part, based on the analysis of the New York Convention, the author selects typical cases from Germany, France and US respectively to introduce the practical situations of the problem in three countries from the perspectives of legislation and judiciary. The third part, referring to the academic achievements of famous scholars at home and abroad, is an abstract of the practice elaborating and commenting the theoretical model of the withdrawn of the recognition and enforcement of international commercial arbitral awards. The author, through the study of the two parts, notes that according to traditional theories, it is general for the national courts to withdraw the actions of the arbitral award. The award will not be bound by law once it is withdrawn by the court in the place of arbitrations. The parties shall not present the award to other foreign court for enforcement, moreover, the other foreign courts have no obligation to enforce the decision that has be withdrew. However, with the change of the background under social economy, some countries, in practice, accepted and performed the awards which were withdrew by the courts, which make traditional theories divided. The development of the theories were driven by practice, under such backgrounds, the scholars have launched a heated debate. The parties in favor of the this trend firmly maintain that this new type of practice shows that the international arbitration will not be bound by the court in the place of arbitration, this kind of practice will lead the arbitration system to become more free and more international. While the other scholars argue that, it is totally right for the court to refuse the enforcement of the arbitration, except for some special cases. Represented by France, only a few countries change the structure of the international commercial arbitration, which were under dual supervision. At last, the author, based on the results of the study above, put forward some opinions for legislation and judicial practice of our country.