A Study On Recognition And Enforcement Of Annulled Arbitral Awards Under The New York Convention

In recent years, international commercial arbitration of which the advantages include efficiency, flexibility and professionalism, has become increasingly popular with the boom of international transactions. Most of the countries tend to pro-arbitration. The recognition and enforcement of annulled arbitral awards, inter alia, has been confirmed by the United States, France and Other European Countries. However, there are differences in ideas and in routines between countries. Therefore this thesis that focuses on the recognition and enforcement of annulled arbitral awards, is intended to elaborate the theory, the authority of New York Convention and the routines of the typical countries; hopefully this thesis may help the legislative and judicial authorities to establish the legal system of recognition and enforcement of annulled arbitral awards in China.This thesis comprises four chapters, totaling 32,000 words or so.The first chapter focuses on the origin of the recognition and enforcement of annulled arbitral awards. The issue of the recognition and enforcement of annulled arbitral awards results from on one hand, the distinctions of the claimant, the jurisdiction and the legal effect between the non-enforcement and annulment, which leads to the different effects; on the other hand, the ambiguity of annulment of arbitral awards in New York Convention and the debate on the discretion of the compe-tent authorities to recognize and enforce foreign arbitral awards in New York Convention.The second chapter explores the authority to recognize and enforce annulled arbitral awards in New York Convention – Art. V(1) and Art. VII(1). This chapter comprises two sections. Section 1 analyzes and concludes that Art. V(1) is a permissive clause, through ordinary meaning interpretation, systematic interpretation, teleological interpretation, supplementary means of interpretation and text equally authoritative interpretation. Section 2 discusses who may invoke Art. VII(1), when Art. VII(1) may be applied, the legislative intent of Art. VII(1) and the relationship between Art. V(1) and Art. VII(1) and concludes that the competent authorities is entitled to recognize and enforce annulled arbitral awards in New York Convention.The third chapter explores the theories and routines of the recognition and enforcement of annulled arbitral awards. This chapter comprises two sections. Section 1 introduces “Delocalization” Theory and “Primary and Secondary Jurisdiction” Theory, discusses the differences in arbitral awards’ nature and the origin of arbitral awards’ validity and concludes that “Delocalization” Theory based on parties’ autonomy, which lay emphasis on the independence of international commercial arbitration from domestic arbitration law, may not fully get rid of the sovereign states’ supervision. “Primary and Secondary Jurisdiction” Theory derives from territoriality. The recognition and enforcement of annulled arbitral awards only exists in exceptional circumstances for the purpose of decent and just in the state where the enforcement is sought. Section 2 elaborates the more-favourable-right-provision routines and the judgment routine to recognize and enforce annulled arbitral awards. The comparison of the more-favourable-right-provision routines between the United States and France, inter alia, is elaborated. This chapter holds that the more-favourable-right-provision routines’ efficiency relies on the domestic arbitration law, meanwhile, the judgment routine leads to a flexible recognition and enforcement.The last chapter points out the existing situations on recognition and enforcement of annulled arbitral awards in China and provides some suggestions on it. Upon the analysis, this author suggests that on one hand, the Art. V(1) shall be confirmed as a permissive clause and the discretion to recognize and enforce of annulled arbitral awards shall be grant to the courts; on the other hand, the legislation with regard to the enforcement of arbitral awards involving foreign events shall be amended in Civil Procedure Law of the People’s Republic of China and Arbitration law of the People’s Republic of China, to live up to the more-favourable-right-provision routines’ efficiency.