ICC国际仲裁院在我国所作裁决的承认和执行
发布时间：2019-03-03 16:11
【摘要】：国际商事仲裁当事方向我国法院申请承认和执行ICC国际仲裁院等国际商事仲裁机构在我国境内(内地)所作裁决涉及两大主要问题：一是ICC国际仲裁院在我国开展仲裁的可行性和合法性问题；二是ICC国际仲裁院在我国所作裁决的国籍定性进而据此确定我国法院承认与执行该类裁决的法律依据问题。对于ICC能否在我国开展仲裁,本文通过比较仲裁服务与GATS下的“法律服务”,论证仲裁服务并不属于“法律服务”的范畴,不受WTO规则的规制,因此并不涉及国外仲裁服务在我国的市场准入问题；同时根据2006年颁布的《仲裁法》司法解释的精神,ICC在我国仲裁也未违反我国《仲裁法》十六条关于有效仲裁协议法定要件之一的“仲裁委员会”的规定,因此ICC在中国开展仲裁不存在法律障碍。对于ICC在我国所作裁决的国籍定性问题,国际商事仲裁理论和实践都普遍将领域标准作为裁决国籍的判断标准,而根据我国的相关立法,我国采用的是独特的仲裁机构所在地标准,这种差异直接导致我国法院对此类裁决的国籍进行认定时存在难以回避的法律困境——此类裁决既非具有我国国籍的内国裁决、涉外仲裁裁决,也非具有外国国籍的《纽约公约》意义上的外国裁决或仲裁机构所在国裁决。我国法院在实践中将此类裁决认定为《纽约公约》意义上的“非内国裁决”进而依据《纽约公约》予以承认和执行,然而通过考察《纽约公约》的订立背景以及有关国家的司法实践不难发现,《纽约公约》意义上的“非内国裁决”是各缔约国妥协的产物,其目的意在扩大公约的适用范围,但并未给各国设定必须执行的国际法义务,此外,《纽约公约》也没有为“非内国裁决”设立统一的判断标准,而是将解释权授予各成员国,实践中各国对其解释各异。考察我国立法和司法实践,我国法院将ICC国际仲裁院在我境内所作裁决认定为“非内国裁决”进而依据《纽约公约》予以承认和执行存在现实的法律障碍。本文认为,解决ICC等国际商事仲裁机构在我国所作裁决的承认和执行问题的根本出路是确立与国际接轨的裁决国籍判断标准并重新定义涉外仲裁裁决；最为现实的选择是在不违反仲裁基本法理以及我国加入的公约国际义务前提下此裁决认定为我国法意义上的“涉外仲裁裁决”予以承认和执行。
[Abstract]:The application of the parties to international commercial arbitration to our courts for recognition and enforcement of the awards made by international commercial arbitration institutions such as the ICC Court of International Arbitration in China (mainland) involves two major issues: first, the opening of the ICC Court of International Arbitration in China The feasibility and legality of arbitration; The second is the qualitative analysis of the nationality of the award made by the ICC Court of International Arbitration in China and the determination of the legal basis for the recognition and enforcement of the award by the courts of our country. As to whether ICC can carry out arbitration in China, by comparing arbitration service with "legal service" under GATS, this paper proves that arbitration service does not belong to the category of "legal service" and is not regulated by WTO rules. Therefore, it does not involve the market access of foreign arbitration services in our country; At the same time, in accordance with the spirit of judicial interpretation of the Arbitration Law promulgated in 2006, ICC arbitration in China also did not violate the provisions of Article 16 of the Arbitration Law of our country on one of the statutory elements of an effective arbitration agreement, Therefore, there are no legal obstacles to ICC arbitration in China. As to the nationality determination of ICC in China, the theory and practice of international commercial arbitration generally regard the standard of domain as the criterion of judging the nationality of adjudication, and according to the relevant legislation of our country, Our country adopts a unique criterion of location of arbitration institutions, a difference that directly leads to an unavoidable legal dilemma in the determination of the nationality of such awards by our courts, which is neither a domestic award of our nationality nor a domestic award of our nationality. A foreign arbitral award is also not a foreign award within the meaning of the New York Convention or an award of the State in which the arbitral institution is located. In practice, our courts have recognized such decisions as "non-domestic decisions" within the meaning of the New York Convention and thus recognized and enforced them on the basis of the New York Convention, However, by examining the context of the establishment of the New York Convention and the judicial practice of the States concerned, it is not difficult to find that "non-domestic awards" in the meaning of the New York Convention are the product of compromise among States parties and are intended to extend the scope of application of the Convention, In addition, the New York Convention does not establish a uniform standard of judgment for "non-domestic rulings". Instead, the power of interpretation is vested in member States, which are interpreted differently in practice. Examining the legislation and judicial practice of our country, the court of our country has recognized the ruling of the ICC Court of International Arbitration in our country as "non-domestic award" and there are realistic legal obstacles to its recognition and enforcement according to the New York Convention. This paper argues that the fundamental way to solve the problem of recognition and enforcement of awards made by ICC and other international commercial arbitration institutions in China is to establish the criterion of judging the nationality of the award in line with the international standards and redefine the arbitration award involving foreign affairs. The most realistic choice is to recognize and enforce the award as a "foreign-related arbitral award" in the sense of Chinese law, without violating the basic jurisprudence of arbitration and the international obligations of the Convention to which China is a party.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997.4
本文编号：2433872
[Abstract]:The application of the parties to international commercial arbitration to our courts for recognition and enforcement of the awards made by international commercial arbitration institutions such as the ICC Court of International Arbitration in China (mainland) involves two major issues: first, the opening of the ICC Court of International Arbitration in China The feasibility and legality of arbitration; The second is the qualitative analysis of the nationality of the award made by the ICC Court of International Arbitration in China and the determination of the legal basis for the recognition and enforcement of the award by the courts of our country. As to whether ICC can carry out arbitration in China, by comparing arbitration service with "legal service" under GATS, this paper proves that arbitration service does not belong to the category of "legal service" and is not regulated by WTO rules. Therefore, it does not involve the market access of foreign arbitration services in our country; At the same time, in accordance with the spirit of judicial interpretation of the Arbitration Law promulgated in 2006, ICC arbitration in China also did not violate the provisions of Article 16 of the Arbitration Law of our country on one of the statutory elements of an effective arbitration agreement, Therefore, there are no legal obstacles to ICC arbitration in China. As to the nationality determination of ICC in China, the theory and practice of international commercial arbitration generally regard the standard of domain as the criterion of judging the nationality of adjudication, and according to the relevant legislation of our country, Our country adopts a unique criterion of location of arbitration institutions, a difference that directly leads to an unavoidable legal dilemma in the determination of the nationality of such awards by our courts, which is neither a domestic award of our nationality nor a domestic award of our nationality. A foreign arbitral award is also not a foreign award within the meaning of the New York Convention or an award of the State in which the arbitral institution is located. In practice, our courts have recognized such decisions as "non-domestic decisions" within the meaning of the New York Convention and thus recognized and enforced them on the basis of the New York Convention, However, by examining the context of the establishment of the New York Convention and the judicial practice of the States concerned, it is not difficult to find that "non-domestic awards" in the meaning of the New York Convention are the product of compromise among States parties and are intended to extend the scope of application of the Convention, In addition, the New York Convention does not establish a uniform standard of judgment for "non-domestic rulings". Instead, the power of interpretation is vested in member States, which are interpreted differently in practice. Examining the legislation and judicial practice of our country, the court of our country has recognized the ruling of the ICC Court of International Arbitration in our country as "non-domestic award" and there are realistic legal obstacles to its recognition and enforcement according to the New York Convention. This paper argues that the fundamental way to solve the problem of recognition and enforcement of awards made by ICC and other international commercial arbitration institutions in China is to establish the criterion of judging the nationality of the award in line with the international standards and redefine the arbitration award involving foreign affairs. The most realistic choice is to recognize and enforce the award as a "foreign-related arbitral award" in the sense of Chinese law, without violating the basic jurisprudence of arbitration and the international obligations of the Convention to which China is a party.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997.4
【引证文献】
相关硕士学位论文 前1条
1 张辰扬;论国际商事仲裁裁决的国籍[D];外交学院;2013年
，本文编号：2433872
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