法搜网--中国法律信息搜索网
国际商事仲裁的法律适用(英文)

  5.The law governing the recognition and enforcement of the award
  It is understandable that the ultimate aim of the parties to arbitrate is, bringing an award to a national court (or courts), to seek the enforcement of the award made by a legitimate arbitration, in case of absence of voluntary carrying out. Parties may take account of the issues of recognition and enforcement before they conclude the arbitration agreement. Both the potential claimants may think of these questions: If I win, where are the opposing party’s assets located? Will the award of arbitration be enforced in that place?
  If the intended recognition and enforcement is sought in the country in which the arbitration award was made, the process of recognition and enforcement will be easier to approach because this award is not foreign or international and the court will regard it as a domestic arbitration award. As mentioned above, the awards of international commercial arbitration are frequently made in a neutral place and the losing party’s assets may be located in more than one country, accordingly the awards when submitted in the national courts are often regarded as foreign awards, as a result, seeking the recognition and enforcement should be considered into a worldwide dimension. From the Geneva Protocol of 1923 to the Geneva Convention of 1927 then culminating in the New York Convention, which had largely superseded the formers, treaties have been acting an importance role to call for the recognition and enforcement of foreign or international arbitral awards. By the end of 1998, more than 115 countries had adhered to the New York Convention 1958. After 1958, even less impact than New York Convention, there were several international and regional conventions made for the particular circumstances. In other words, the ICA awards have approaches to be recognized and enforced by the national courts in most important trading countries of the world and once a country has signed on a treaty, e.g. New York Convention, it means that country has adopted the provisions of New York Convention, and the only thing should be done by its domestic courts is to examine whether the award meets the requirements of the provisions for recognition and enforcement. One point should be clear that the parties may choose their preferable lex arbitri, appoint arbitrators whoever they like, decide the proper law referred to arbitral tribunal and select the appropriate place for enforcement of the award, but they have nothing to do with the risk of refusal of recognition and enforcement, which is resulting from the recognition and enforcement against the public interest of that country. They cannot choice other laws to avoid that country’s public interest. Since the public policies are very complex and different from country to country, no one can offer a universal standard. In my opinion, this issue should be left to conventions, bilateral treaties or multi-treaties by way of national treatment or reciprocity principles.
  Some problems may arise from certain circumstance. After Hong Kong came back to China in 1997, the recognition and enforcement of awards made in the other legal territory had to be pending in both the courts of Hong Kong and the courts of Mainland China. This is because: the P. R. China has recognized the existing legal system in Hong Kong; the P. R. China and Hong Kong are independent parties to New York Convention; both arbitration laws treat foreign awards as Convention awards; there is no legal framework to consider those awards not domestic awards. Fortunately, it was recognised that there is no reason to build any barriers between two legal territories for enforcement of arbitral awards. Until June 1999, two highest judiciary institutions signed an arrangement for recognition and enforcement the awards each other. Those awards were no longer pending.


第 [1] [2] [3] [4] [5] [6] [7] [8] 页 共[9]页
上面法规内容为部分内容,如果要查看全文请点击此处:查看全文
【发表评论】 【互动社区】
 
相关文章