Study On The Public Order Issues In The Execution Of Foreign-related Arbitration Awards

Since the 20 th century,the international commercial arbitration system has developed rapidly.More and more cross-border commercial entities have achieved high efficiency and fairness in dispute resolution through international commercial arbitration.Therefore,they are more inclined to resolve existing or potential international disputes through arbitration.Winning the arbitral process is only the first step towards achieving the goal,and the ruling is the key to effective implementation.The Convention on the Recognition and Enforcement of Foreign Arbitral Awards(hereinafter referred to as the New York Convention),which has the largest number of States Parties and the most successful operations in the world,clearly states that the State party may refuse to recognize and enforce arbitral awards in a number of circumstances.Article 5,paragraph 2,sets two grounds for refusing to recognize and enforce the courts of the country in which they can voluntarily invoke the refusal to enforce the ruling in accordance with their own powers,and “violation of public order” is one of them.Under the guidance of the two relative objectives of safeguarding judicial supervision and expanding the flexibility of arbitration,public order also plays a certain role in the execution of arbitration: on the one hand,the courts of various countries recognize the public order rejection refusal to maintain the arbitration procedure.Implement a cautious approach to support the arbitration process as smoothly as possible;on the other hand,in order to safeguard the fundamental values of national law and the important public interest of society,countries usually do not abandon the use of the public order system.In order to reduce the cost of negotiation of the text of the Convention and to maximize the consideration of seeking common ground while reserving differences,the New York Convention intends to avoid the definition of public order,and the series of problems brought about by theory and practice have led to the discussion of academic circles in various countries.In this paper,the author selects the perspective of public order in the execution of foreign-related arbitration awards,and proposes practical and feasible measures for the development of public order system.It includes the following four parts:The first part is the general issue of public order in the enforcement of foreign arbitral awards.Starting from the meaning of public order,the application of public order in the enforcement of foreign-related arbitral awards is explored,mainly divided into procedural public policies and entity-based public policies.On this basis,the nature of public order in the enforcement of foreign-related arbitral awards is defined in detail,that is,it belongs to the scope of domestic law,is the public order in the recognition and enforcement of arbitral awards,and belongs to the international public order and residual clauses.The three criteria of subjective standards,objective standards and degree standards applicable to public order are elaborated.The second part is the application of public order in the implementation of China's foreign-related arbitration awards.First of all,the legislative provisions on the recognition and enforcement of public order in foreign-related arbitration mainly include four aspects: substantive law,procedural law,judicial interpretation and international treaties.Secondly,two typical cases in judicial practice,the China Women's Travel Agency Case and the Mann's Company Case,respectively reflect the positive choice of the foreign-related arbitral award and the negative exclusion of the applicable public order.Finally,after witnessing the status quo of China's public order development,it points out its existing problems,that is,there are no detailed provisions for the consideration of the use of public order,and the current implementation of the regulations does not show the concept of restricting public order,the public order connotation and The applicable standards are ambiguous and lack of procedural justice.The third part is the application of public order in the recognition and enforcement of extraterritorial arbitral awards.This chapter adopts a combination of theoretical research and empirical analysis to examine the legislative provisions on the public order of the recognition and enforcement of extraterritorial international commercial arbitration awards,and to explore the judicial practice cases of the civil law system and the common law system.By analyzing the above contents,we explore the characteristics of public order in the process of recognition and implementation of international commercial arbitration awards,including the distinction between public order and domestic and international,the distinction between public order and national policy,the strict application of public order and the application of public procedures.Four aspects.The fourth part is to improve the public order in the implementation of foreign-related arbitral awards in China.The author combines the useful experience of extraterritorial public order,rationally thinks how to apply the public order in China's foreign-related arbitration more reasonably,and proposes at the legislative level to enact various factors that should be considered in the application of public order in the legislation.The principle of public order,at the level of application,proposes to limit the connotation and extension of public order,and proposes corresponding suggestions for improvement in the four aspects of procedural justice in the choice of technology,in order to better apply public order and promote the foreign-related arbitration in China.development of.