涉外仲裁裁决在中国大陆的执行：问题与发展
Enforcing Foreign Related Arbitration Awards: Issues and Development Due to New Corporate Legilsation in China
曾宇
【关键词】Enforcement Foreign-related Arbitral Awards New Corporate Legislation
【全文】
Part I. Foreword
As Prof. Randall Peerenboom once put it, nothing could be more frustrating than not being able to enforce an arbitration award in China after winning a difficult battle in the arbitration tribunal.(1) But this is an issue that many enforcement-seeking parties have faced, or are facing now. This essay briefly introduced the legal framework of enforcing foreign related arbitration awards in mainland China, and comments on some outstanding issues in this area, as well as relevant legal developments under the new PRC corporate laws.
1. The Legal Framework for Enforcing Foreign Related Arbitration Awards in Mainland China
Under the Chinese law, there are three kinds of arbitration awards under Chinese laws: domestic arbitration awards, foreign related awards (hereinafter referred to as “foreign related awards”), and foreign arbitration awards.(2) Domestic arbitration awards are awards by local arbitration commissions that do not involve a foreign element. Foreign related awards are awards made by China International Economic and Trade Arbitration Commission (hereinafter referred to as “CIETAC”), China Maritime Arbitration Commission (hereinafter referred to as “CMAC”), or local arbitration commissions that involve a foreign element. Foreign awards refer to arbitration awards made outside the PRC, including awards made under the New York Convention of 1958.(3)
At the international level, the PRC is a contracting party of the New York Convention of 1958, which applies to enforcement of foreign arbitration awards in China. Domestically, the Civil Procedure Law of the PRC (hereinafter referred to as the “Civil Procedure Law”) and the Arbitration Law of the PRC (hereinafter referred to as the “Arbitration Law”) are the two major Chinese laws regulating enforcement of arbitration awards. Besides, the Supreme People’s Court of the PRC (hereinafter referred to as the “SPC”) issues various judicial interpretations (sifa jieshi) on enforcement of arbitration awards. These judicial interpretations are also important and binding regulations.
There have been numerous literatures on the general legal framework of enforceability of arbitration awards in China. For international practitioners these publications are good references for understanding to this topic.(4)
