Research On The Criteria For Determining Nationality In Mainland Awards Of Overseas Arbitration Institutions

With the steady and positive development trend of international commercial arbitration,in the settlement of commercial disputes,due to the convenient and rapid commercial requirements,arbitration can better replace litigation as an efficient mechanism for resolving disputes,which has been widely praised by the parties.Currently,in the recognition and enforcement process of mainland arbitration conducted by overseas arbitration institutions,there is still a lack of uniform standards for the determination of the nationality of arbitral awards,resulting in repeated positions in court proceedings in practice,leading to many uncertain risks in the recognition and enforcement of such arbitral awards.No matter in the field of arbitration theory or practice,China has not made clear provisions on the application of the nationality standard and how to connect with the international community.The disputes generated not only have led to differences of views among scholars in the academic field,but also have led to inconsistent and unclear positions of our courts in judicial practice regarding the determination of relevant cases.In judicial practice,from the "Longside" case to the "Brandwood" case,the attitude of Chinese courts towards the determination of nationality standards in arbitral awards has been clearly demonstrated through judicial practice at various levels.From the beginning,the attitude of Chinese courts fluctuated repeatedly in the "conservative" direction,to actively resolve doubts and doubts in suspected cases,responding to the problems in representative cases,reflecting a positive and positive direction,However,in China’s legislation,the determination of nationality standards in the decisions made by overseas arbitration institutions in arbitration conducted in the mainland is still unclear and inconsistent.Looking at the legislative practices of many typical countries in the world,it can be seen that the "place of arbitration standard" has gradually become a trend in the development of international commercial arbitration,and thanks to the rapid development of modern electronic technology and the Internet,the actual location of the place of hearing in arbitration proceedings can be flexibly selected and changed.The term "place of arbitration" has long been no longer limited to its "geographical significance" in the application of nationality determination,Compared to fixed geographical attributes,the understanding of the concept of "place of arbitration" focuses on the legal attributes that are different from other geographical attributes.It is not limited to the place where the arbitral tribunal conducts its ruling or hearing,but also has a close legal relationship with the arbitral award,which is of great significance for arbitration.Clarifying the "place of arbitration" standard as the standard for determining the nationality of overseas arbitration institutions in Chinese mainland can resolve the adverse impact of current arbitration awards when the determination of nationality standards is inconsistent with internationally accepted standards.At the same time,clarifying the determination of nationality standards can also logically solve the difficulties of recognition and enforcement of arbitration awards.The application of the "place of arbitration" standard in practice cannot be separated from the clarification and unification of judicial review of awards.In order to enable overseas arbitration institutions to conduct more benign development of their awards in the mainland,legislative provisions and judicial review should complement each other,and work together to promote the progress of China’s commercial arbitration through the enforcement procedures of overseas arbitration institutions’ awards in the mainland.