A Study On Judicial Review Of The Negative Jurisdiction Decision Of The Arbitral Tribuna

It is a basic common sense in international commercial arbitration that an award made by an arbitral tribunal wrongly exceeding its jurisdiction will be revoked by the court under judicial review.The law of every country basically regards the wrong exercise of jurisdiction of the arbitral tribunal as one of the circumstances of revoking the award,and China’s legislation is no exception.However,the case of wrongful denial of jurisdiction by the arbitral tribunal,the opposite of ultra viential jurisdiction of the arbitral tribunal,does not constitute a statutory basis for quashing an award.Neither the binding New York Convention nor the Soft law model Law provides for such a case.In China,the relevant research is rarely seen in academic works.Why should judicial review discriminate between the two results of the improper exercise of jurisdiction by the arbitral tribunal? An expert in the UNCITRAL Model Law Drafting Group,in discussing arbitral tribunal’s jurisdictional decisions,briefly accorded the same judicial review status to an arbitral tribunal’s decision denying its own jurisdiction as to an arbitral tribunal’s decision affirming its own jurisdiction,but this suggestion was ultimately not adopted.By reviewing the practice of negative jurisdiction adjudication,this paper concludes that the legislative and judicial practice of negative jurisdiction adjudication in international commercial arbitration presents a dualistic pattern.Legislatively,the United Kingdom,the United States,Switzerland,Singapore and other countries have stipulated in the arbitration law the judicial review of the negative jurisdiction award of the arbitral tribunal.Chinese mainland,Chinese Hong Kong,Austria and other countries have adopted provisions consistent with the Model Law to remain silent on negative jurisdiction rulings.In the legislation of the dualistic structure in the field of international commercial arbitration can cause of ruling of judicial review is not harmonious,international commercial arbitration,as a product of globalization,the development of the ideal is the ruling in accordance with the provisions of national law to accept a consistent judicial review,this goal is also the demonstration law coordination and advancing direction in the field of international commercial arbitration.The gap between the reality and the goal makes some scholars start to pay attention to this issue,but most of the existing studies are focused on a single case analysis,and few theories systematically comb the practice and legislation of various countries.In judicature,there are huge differences in the practice of judicial organs in different countries,and even in different countries.This paper points out that the reason for the differences between countries lies in the different legal provisions among countries.The different attitudes of the judicial organs within the country in dealing with similar cases are derived from the silence of the law of the country on the judicial review of the negative jurisdiction award of the arbitral tribunal.This paper adopts the method of empirical analysis to explain the process of the negative jurisdiction award of the arbitral Tribunal from being ignored by the international community to some countries adopting a positive attitude to change their legislation,and concludes the reasons why the negative jurisdiction award has not received the same attention as the positive jurisdiction award.This paper makes a comparative analysis of the practice of negative jurisdiction rulings in judicial review and concludes that the reasons for the court to reject the review can be summarized as four points.First,the basis of judicial review is closed;Second,holding that a negative jurisdiction finding does not constitute an award;Third,adopt the policy of court departmentalism,regard the court as "legitimate" judge;Fourthly,the cancellation of the negative jurisdiction award violates the arbitrator’s voluntary nature.In chapter three,"Review and Relief of the Confusion in the practice of negative jurisdiction Adjudication",the author evaluates each of them one by one.Similarly,the second part of the article also summarizes the practices of incorporating negative jurisdiction rulings into the review,which can be summarized as follows.First,review on the basis of a violation of due process principles;Second,review on the basis of normative law;Third,review on the grounds of deprivation of constitutional rights;Fourth,article 16 of the Model Law was reviewed.The above review basis also has its own shortcomings,especially the fourth basis has been unanimously criticized by scholars.This paper further points out that a unified standard for judicial review of negative jurisdiction rulings of arbitral tribunals should be established with a positive attitude.As for binding "hard law" should be taken,or demonstration significance of "soft law",the author thinks that take into account the countries on this issue has not reached broad consensus,so it make a binding treaty lack of realistic foundation,so can consider to adopt the strategy of "soft law" in the present stage more feasible.This paper integrates the judicial practice of negative jurisdiction ruling in China,and points out that the judicial practice in China is in a relatively chaotic state,and the current legislation can no longer meet the needs of the court’s judicial practice on this issue.However,the promulgation of the Arbitration Law(revised Draft)has not responded to this problem,and the clear establishment of the arbitral tribunal’s self-adjudication jurisdiction will aggravate the current confusion.Therefore,through the analysis and reference of foreign practical experience,this paper proposes that courts should uniformly determine the attitude of judicial review to negative jurisdiction.On this basis,the author suggests to establish a set of standard and complete review mechanism in China’s practice,and puts forward suggestions on legal reform of judicial review to negative jurisdiction rulings.In the legal reform,it is suggested to adopt the principle of comprehensive review to examine the substantive issues.The promulgation of arbitration Law(revised Draft)provides an opportunity for China to establish this review mechanism.The provision in Paragraph4 of Article 77 of the Arbitration Law may be used as the basis for revoking negative jurisdiction rulings,but it is still not clear.With the establishment of the principle of jurisdictional self-determination in China,there are more and more cases in this regard.It may be possible to explore the principle of establishing the attitude of review in practice and finally refine it through judicial interpretation.