A Study On The Enforceability Of Foreign Arbitral Awards Of Disputes Without Foreign Factors

With the development of China’s market economy and the deepening of its opening up to the outside world.In practice,new types of cases involving disputes without foreign factors submitted to foreign arbitration have emerged.This article discusses the enforceability of awards made by overseas arbitration for disputes without foreign factors in our country.The full text is divided into four parts:The first part is the definition of the concept of the enforceability of foreign arbitral awards of disputes without foreign factors.That is,to clarify the identification standard of disputes with foreign factors and foreign arbitral awards.The identification criteria of disputes with foreign factors include legal relation factor criteria,foreign connection and substantive connection factor criteria.The criteria for substantive connection factors will neither solidify the determination of foreign factors nor expand the determination of foreign factors indefinitely.However,the current law of our country has made a breakthrough in the identification of disputes involving foreign factors,but it is still unable to get rid of mechanical and inflexible restraints.China’s adoption of the standard of arbitration institution has made it more difficult to identify foreign arbitral awards.In addition,there are still disputes in our academic circles about the enforceability of foreign arbitral awards of disputes without foreign factors in our country.The second part is the basis for confirming the enforceability of foreign arbitral awards of disputes without foreign factors.Foreign rulings without foreign-related factors are enforceable in our country.First of all,arbitration is a private judicial mechanism formed by contracts.The relationship between contracts and judicature should be dominated by contracts,and judicature should not interfere too much in arbitration.The free will of the parties in arbitration and the right to choose authority should be respected.Recognition and enforcement of awards that reflect the parties’ consensus is the proper meaning of judicial support for arbitration.Secondly,as a legal service,arbitration needs to be paid more attention to the further opening of its service market and the further improvement of service quality.Finally,many countries in the world have practiced the purposes and principles of the New York Convention.When recognizing and enforcing foreign arbitration awards,they do not consider whether the dispute has foreign-related factors,and confirm the enforceability of foreign arbitral awards of disputes without foreign factors.The third part is the realistic dilemma of the recognition and enforcement of foreign arbitral awards of disputes without foreign factors in our country.The realistic dilemma inlegislation lies in whether the domestic parties can stipulate overseas arbitration for disputes without foreign factors.There are even judicial explanatory documents that hold that disputes without foreign factors submitted overseas arbitration of agreements are invalid.The real dilemma in judicial practice lies in the rigid and confusing criteria for determining whether a case has foreign factors.And disputes without foreign factors submitted overseas arbitration of agreements are invalid,bacause the law does not authorize.In the judicial review of foreign arbitral awards of disputes without foreign factors,the applicable law of the arbitration agreement is wrongly determined,and public policies are wrongly understood and applied.The fourth part is the way out to solve the dilemma of our country’s recognition and enforcement of foreign arbitral awards of disputes without foreign factors.In legislation,the application of the New York Convention is given priority in the recognition and enforcement of foreign arbitral awards of disputes without foreign factors.It is clear that disputes without foreign factors can be arbitrated abroad,and arbitration agreements that make such agreements are valid.In judicial practice,judges should be encouraged to make expanded interpretations of clauses that identify foreign factors,and use interests as guiding criteria to identify foreign factors when making expanded interpretations.In judicial review,the applicable law of the arbitration agreement should be correctly determined and the parties’ consensus should be respected.When the arbitration agreement is part of the main contract,it should be taken into account as an important factor,and when the applicable law of the contract is applied to make the arbitration agreement valid,it should be applied to make the arbitration agreement valid as far as possible.Finally,carefully understand and apply public policies to protect the legitimate rights and interests of the parties.