ICC國際仲裁院在我國所作裁決的承認(rèn)和執(zhí)行
發(fā)布時間：2019-03-03 16:11
【摘要】：國際商事仲裁當(dāng)事方向我國法院申請承認(rèn)和執(zhí)行ICC國際仲裁院等國際商事仲裁機(jī)構(gòu)在我國境內(nèi)(內(nèi)地)所作裁決涉及兩大主要問題：一是ICC國際仲裁院在我國開展仲裁的可行性和合法性問題；二是ICC國際仲裁院在我國所作裁決的國籍定性進(jìn)而據(jù)此確定我國法院承認(rèn)與執(zhí)行該類裁決的法律依據(jù)問題。對于ICC能否在我國開展仲裁,本文通過比較仲裁服務(wù)與GATS下的“法律服務(wù)”,論證仲裁服務(wù)并不屬于“法律服務(wù)”的范疇,不受WTO規(guī)則的規(guī)制,因此并不涉及國外仲裁服務(wù)在我國的市場準(zhǔn)入問題；同時根據(jù)2006年頒布的《仲裁法》司法解釋的精神,ICC在我國仲裁也未違反我國《仲裁法》十六條關(guān)于有效仲裁協(xié)議法定要件之一的“仲裁委員會”的規(guī)定,因此ICC在中國開展仲裁不存在法律障礙。對于ICC在我國所作裁決的國籍定性問題,國際商事仲裁理論和實踐都普遍將領(lǐng)域標(biāo)準(zhǔn)作為裁決國籍的判斷標(biāo)準(zhǔn),而根據(jù)我國的相關(guān)立法,我國采用的是獨(dú)特的仲裁機(jī)構(gòu)所在地標(biāo)準(zhǔn),這種差異直接導(dǎo)致我國法院對此類裁決的國籍進(jìn)行認(rèn)定時存在難以回避的法律困境——此類裁決既非具有我國國籍的內(nèi)國裁決、涉外仲裁裁決,也非具有外國國籍的《紐約公約》意義上的外國裁決或仲裁機(jī)構(gòu)所在國裁決。我國法院在實踐中將此類裁決認(rèn)定為《紐約公約》意義上的“非內(nèi)國裁決”進(jìn)而依據(jù)《紐約公約》予以承認(rèn)和執(zhí)行,然而通過考察《紐約公約》的訂立背景以及有關(guān)國家的司法實踐不難發(fā)現(xiàn),《紐約公約》意義上的“非內(nèi)國裁決”是各締約國妥協(xié)的產(chǎn)物,其目的意在擴(kuò)大公約的適用范圍,但并未給各國設(shè)定必須執(zhí)行的國際法義務(wù),此外,《紐約公約》也沒有為“非內(nèi)國裁決”設(shè)立統(tǒng)一的判斷標(biāo)準(zhǔn),而是將解釋權(quán)授予各成員國,實踐中各國對其解釋各異�？疾煳覈⒎ê退痉▽嵺`,我國法院將ICC國際仲裁院在我境內(nèi)所作裁決認(rèn)定為“非內(nèi)國裁決”進(jìn)而依據(jù)《紐約公約》予以承認(rèn)和執(zhí)行存在現(xiàn)實的法律障礙。本文認(rèn)為,解決ICC等國際商事仲裁機(jī)構(gòu)在我國所作裁決的承認(rèn)和執(zhí)行問題的根本出路是確立與國際接軌的裁決國籍判斷標(biāo)準(zhǔn)并重新定義涉外仲裁裁決；最為現(xiàn)實的選擇是在不違反仲裁基本法理以及我國加入的公約國際義務(wù)前提下此裁決認(rèn)定為我國法意義上的“涉外仲裁裁決”予以承認(rèn)和執(zhí)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.
【學(xué)位授予單位】：復(fù)旦大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D997.4
本文編號：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.
【學(xué)位授予單位】：復(fù)旦大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D997.4
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前1條
1 張辰揚(yáng);論國際商事仲裁裁決的國籍[D];外交學(xué)院;2013年
，本文編號：2433872
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