The Characterization Of The Nationality Of International Arbitral Awards In The Process Of Recognition And Enforcement In China

With the rapid global economic integration, the number of international commercial transactions has increased largely, so have the disputes. As an effective means of resolving disputes, international arbitration has been adopted a lot. The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("1958 New York Convention") guarantees the enforcement of international commercial arbitration awards all over the world. The nationality of international arbitral awards can affect the enforcement significantly. As to a domestic court, it has the right to claim the effectiveness of the awards which have the same nationality with the court in accordance with its domestic law. In the process of recognition and enforcement, different nationalities of the international awards can make a difference to review standard and the implement modality. Among the criteria for recognizing the nationality of the international commercial arbitral awards, the geographical criterion is the most important and internationally accepted one. Except for the geographical criterion, there are also other criteria for recognizing the nationality of the arbitral awards, such as the applicable law criterion, non-domestic award criterion and so on. There is no specific provision on the criterion on recognizing the nationality of the arbitral awards. However, in judicial practice, the unique criterion---arbitration institution criterion has been adopted, which may result in some problems related to keeping track with the international standard. This thesis will focus on the criteria on recognizing nationality of arbitral awards and related issues will be discussed. This thesis consists of 5 parts:The first part introduces the concept of the nationality of the international commercial arbitral awards and the criteria on recognizing of the nationality of arbitral awards. The concept introduction includes the traditional theory which holds that the arbitral awards should have the nationality and the delocalized arbitration theory which holds that the arbitral awards do not have the nationality. The criteria introduction includes the most internationally accepted criterion and some other criteria.The second part introduces non-domestic award criterion under the 1958 New York Convention which has global influence. The introduction includes the significance of the non-domestic award criterion, the reason why it was set, how to identify a non-domestic award and the influence that the reciprocity reservation under the 1958 New York Convention has on it.The third part introduces related Chinese law. The introduction mainly includes the different provisions on the domestic arbitration, arbitration involving foreign elements and arbitration of foreign institutions. And this part also analyzes the problems related to the ad hoc arbitration and the criteria on recognizing the nationality of the arbitral awards in the legislative practice.The forth part introduces judicial practice related to the recognition and enforcement of international commercial arbitral awards. This part analyzes some typical cases that the arbitral awards made by ICC court of arbitration apply for recognition and enforcement in China and the relevant problems.According to the foregoing analysis, it is quite necessary to improve China's related legislation. The fifth part attempts to put forward some advice, such as the establishment of the ad hoc arbitration system, adopting the geographical criterion to recognize the nationality of the arbitral awards and so on.