The Research On The Recognition And Enforcement Of Arbitral Awards Set Aside In The Country Of Origin

New York Convention creates a uniform mechanism to recognize and enforce foreign arbitral awards,yet consensus is far from being reached over recognition and enforcement of annulled arbitral awards.In the recent ten years,cases have continuously arisen where parties tried to enforce an annulled award in different countries and ended with diverse outcomes,making it a hot topic.This thesis starts from the theory of recognition and enforcement of annulled arbitral awards,and analyzes the legal basis as well as international practice in respect thereof.This thesis finally hopes to help to reconstruct the legal system addressing such problem in China.The first chapter focuses on the origin of the issue.The issue comes with two reasons.On one hand,different courts may hold different opinion in respect of the source of the validity of arbitral awards.For those who believe that the validity derives exclusively from the law of the country of origin,once the award is vacated,there remains nothing to be enforced.For those who base the validity on international consensus,a different conclusion will be reached.On the other hand,the different legal effects of nonenforcement and annulment,as well as the ambiguous text of New York Convention,lead to debate on the discretion enjoyed by courts.The second chapter discusses the basis to recognize and enforce annulled arbitral awards under New York Convention,i.e.Article V(1)(e)and Article VII(1).This chapter makes analysis by applying treaty interpretation rules and concludes that Article V(1)is a permissive clause.This chapter also discusses Article VII(1)as a more-favorable-right provision and its relationship with Article V(1),and concludes that New York Convention creates two routes for recognition and enforcement of annulled arbitral awards.Where the domestic law of enforcing country provides more favorable conditions than New York Convention,the parties could directly apply the domestic law by invoking Article VII(1).Where no such conditions exist,the court may still exercise the discretion they enjoy under Article V(1).The third chapter explores international practice thereof.Section I summarizes court judgements collected in Commercial Arbitration Yearbook in the recent forty years,and discusses the international trend,concluding that major countries unanimously acknowledge the discretion enjoyed by court under Article V(1).Section II discusses the route to invoke more-favorable-right provision in Article VII(1),and through analysis of French practice,concludes that this route may ensure predictability but may easily give rise to conflicting judgments.Section III discusses the route for the court to exercise discretion,concluding that different courts may have different understanding regarding standard of discretion.Section III also points out that certain degree of consensus has been reached in respect of arbitral awards vacated under international standards.The last chapter concerns response to annulled arbitral awards in China.Currently the Supreme Court rejects discretion under Article V(1)through judicial interpretation,and in light of the development of international practice,such position needs to be reassessed.On one hand,the Supreme Court needs to revise the judicial interpretation and acknowledge the discretion.On the other hand,the exercise of discretion shall be strictly supervised,which could be achieved by letting Supreme Court have a final word on the standard of discretion,and for those arbitral awards vacated under international standards,the courts shall refuse the recognition and enforcementTo conclude,either treaty interpretation or analysis of practice of major countries will lead to the conclusion that Article V(1)confers upon court the discretion to recognize and enforce annulled awards.New York Convention creates the highest threshold for nonrecognition and enforcement of foreign arbitral awards,whereas China creates a higher threshold in the form of judicial interpretation.In order to honor the obligations set out in the Convention,such judicial interpretation needs to be revised.In respect of the specific route,it is inappropriate for China to in make it clear in its domestic law that annulment of awards is not a reason for non-recognition and enforcement.Such approach may enhance the predictability of recognition and enforcement,but may also easily give rise to conflicting judgments.It is better for China to acknowledge the discretion enjoyed by the court and strictly supervise the exercise of discretion.For those arbitral awards annulled under international standards,the courts shall refuse the recognition and enforcement.