The Review Of Due Process On Foreign Arbitral Awards

With China playing an important role in the World Trade Organization,the trend of globalization has been strengthened.The concept of the global village has been put forward,all of which indicates the organic nature of the integrity of international community.Accompanied by the increasingly close international exchanges and rapid economic development.Inevitably,it will bring controversy because of the contradiction between the distribution of interests or rights and obligations.Arbitration has gradually become a popular method of dispute resolution by virtue of its confidentiality,flexible procedures and high efficiency.At the same time,a considerable important positive factor,1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards(hereinafter referred to as the “New York Convention”)makes international commercial arbitral awards enforceable worldwide.The member states of the Convention conduct judicial review of foreign arbitral awards in accordance with the standards set by the Convention,and to decide whether to recognize and enforce the awards.The due process review is a fundamental factor in the recognition and enforcement of foreign arbitral awards.In the judicial practice of each country,the court may refuse to recognize and enforce the arbitral awards on the grounds that the they violate due process.Because the provisions of the New York Convention on due process are not specific enough,the understanding and application of due process of courts in different counties is inconsistent in judicial practice,which makes due process one of the most controversial defenses.Therefore,this paper is based on the international legislation and practice of recognizing and enforcing foreign arbitral awards,as well as its provisions in domestic legislation,and elaborates and comments on domestic and foreign academic views on due process.With typical cases at home and abroad,this paper will clarify relevant theoretical theories.This author points out that China shall start both from the legislative and judicial levels,and at the same time,we shall refer to international advanced practices to further improve the application of due process in China.The first part begins from the rise and development of the due process review of recognition and enforcement of foreign arbitral awards,from what is the due process,and the necessity of applying due process review on foreign arbitral awards.For this part,we mainly divide it into three parts,one is the source of the right to arbitrate,the other is on the right relief,and finally from the perspective of the nature of arbitration.At last,we take British as an example,which has a long arbitration history and the most influential arbitration power,to grasp due process review on foreign arbitral awards and demonstrate the trend and development of it in the future.The second part starts with the legal basis of due process review.Understanding the application of any rule is inseparable from the profound analysis of the theory behind it.The author starts from the legal basis of due process examination,mainly the theory of natural justice and the theory of basic human rights.Due process review conflicts between the value orientation driven behind the two values of result justice and procedural justice,and in order for it to develop steadily,countries also constantly seek coordination among them,with a view to achieving a balance between justice and efficiency.The third part carries on the country inspection to the due process review,mainly from the arbitrator's power restriction and the party's right protection to investigate,with the help of the British,the United States and the French legislation and the relevant practice as the carrier,at the same time also contains the fundamental international convention which is applicable internationally to the analysis,which horizontally compares and summarizes the review of due process from content and standard in different countries.The fourth part takes the practice of our country as the foothold,from the legal provisions applicable to the recognition and enforcement of the judicial review of foreign arbitral awards and the relevant judicial interpretation in our country,and analyzes the problems existing in the application of due process review from the typical cases,mainly embodied in the standard of proper notice of arbitration and the right of statement of parties.Finally,the author intends to offer suggestions on due process review to improve the status quo from three angles.First of all,to clarify the theoretical guidance of judicial review,some countries advocate the theory of procedural review,some countries advocate the theory of comprehensive review,what is China's choice? China should adhere to the procedural review as the fundamental,while empowering the parties the right in their agreement,the parties can agree to expand the scope of the review,which fully achieve the autonomy;Finally,to further clarify the criteria for due process review.