On The Legal Issues Of Overseas Arbitration Institutions In China

Under the background of advocating the construction of One Belt And One Road and devoting to building an Asia-Pacific arbitration center,China has gradually deepened the opening degree of the arbitration service market.At present,there are two forms of overseas arbitration in China,one is the arbitration of choosing China as the place of arbitration,and the other is the arbitration of setting up branches in China.For example,the State Council issued documents from 2015 to 2020 to encourage overseas arbitration institutions to set up representative offices in China.In the current practice of international commercial arbitration,the selection of China as the place of arbitration of the relevant cases caused a wide discussion,so this paper studies the object of overseas arbitration in China is the first manifestation of the choice of the place of arbitration in China’s arbitration.At present our country on the judicial level for such cases presented the supported by strictly limited to gradually shift,but does not mean that such cases related issues have been settled satisfactorily,and the legislative level,our country related legal supporting system is not perfect,how to foreign arbitration institution arbitration in our country to provide a good legal environment,is an important subject to be solved.This paper uses normative analysis,case analysis and literature research methods to study the legal issues of overseas arbitration institutions in China.In addition to the introduction and conclusion,the main content of the paper is divided into four parts,including the following:The first part is about the issue of overseas arbitration in China.First of all,taking the "Brantwood case" in August 2020 as an example,it focuses on the analysis of the three clear points of the case,that is,the validity of the arbitration agreement,the nature and basis for the execution of the award,and the criteria for determining the nationality of the award.Secondly,on the basis of judicial practice,this paper summarizes the basic situation of overseas arbitration institutions in China,so as to accurately grasp that the number of cases arbitrated by overseas arbitration institutions in China is showing a rising trend,and China has the corresponding arbitration market conditions.The second part is about the validity of arbitration agreements arbitrated by foreign arbitration institutions in China.First,it clarifies the standards and applicable laws of the validity of such arbitration agreements.Secondly,combining with dozens of cases from 2004 to 2020,this paper analyzes the relevant judicial practice of Chinese courts in this period of time and makes analysis and comments.Finally,the author puts forward some suggestions to define the position of arbitration institution and introduce the temporary system in time.The third part is about the procedural law applied by overseas arbitration institutions in China.Although there is no dispute over the applicable procedural law in the aforementioned "Brantwood case",it is an unavoidable legal issue for foreign arbitration institutions to arbitrate in China.This part first summarizes the three theories in the practice of international commercial arbitration,and then analyzes the problems arising in the judicial practice of our country,and puts forward the laws applicable to China’s arbitration by taking China’s laws as overseas arbitration institutions.The fourth part is about the recognition and enforcement of arbitral awards by foreign arbitration institutions in China.The first is the concept and identification standard of nationality,and summarizes the judicial practice of our country.Secondly,the classification and defects of arbitral awards in China,as well as the judicial dilemma caused by such defects,combined with practice,the applicability of "non-domestic arbitration award theory" and "foreign-related arbitration award theory" is discussed.Finally,legislative proposals are put forward respectively in the Arbitration Law and the Civil Procedure Law,such as clarifying the concept of the place of arbitration in the Arbitration Law and changing the "award made by a foreign arbitration institution" to "foreign arbitration award" in the Civil Procedure Law.