A Study On Judicial Review On International Commercial Arbitration

A discussion has been made on the value and main contents of judicial review on international commercial arbitration in this thesis which comprises5chapters, in which discussion respectively goes to five topics which mean the value pursuit of review, the review on the legal force of the agreement of arbitration,the review on some elements of the arbitration procedure,the review on the legal effect of the arbitral award and the review on the enforcement of the arbitration award,while relevant perfect measures to modify the rules of China’s judicial review system have been put forward accordingly in every chapter.Chapter I is the introduction to the basic issues of judicial review on international commercial arbitration.With clarification of some essential conception and ideas as the basis for further study,this chapter involves debates on three objects which contain the basic concepts of international commercial arbitration, the notion of judicial review and the necessity and rationality of judicial review on international commercial arbitration.The focal point in this part is the conclusion that the value pursuit of judicial review institution is supporting arbitration from judicial system as far as possible after the profound study on the function of judicial review mechanism by the application of the principles of the economics of law.Chapter II goes to the discussion of the judicial review on effectiveness of arbitral agreement.This chapter discusses the function of arbitration agreement which is thought as the cornerstone of the arbitration system.Then it focuses on the effect of the arbitration agreement,demonstrating that effective arbitration agreement can not only restrain the parties concerned, but also endow the arbitration institution with jurisdiction, excluding the jurisdiction of the courts.Finally,this chapter discourse upon the right of the parties to appeal the court to check the effectiveness of arbitration agreement,which can be exercised before the beginning of the arbitration, in the arbitration process, or after the arbitration award made according to the relevant international treaties and national laws, with an application for court to review the substantive elements and the formal requirements of the agreement. Chapter III goes to the topic of the judicial review on international commercial arbitral proceedings. It is normal that there is some clauses which are insufficiently comprehensive or incomplete in an arbitral agreement for various reasons when the parties agree to make submission of their dispute to arbitration.The defective clauses will cause new conflict between two parties,which may affect the normal advance of the arbitral process.When the parties can not achieve resolution on these issues or disputes, it is necessary for court to take some judicial measures to envolve in the procedure of the arbitration, which may include terminating judicial process, designating or appointing or even removing the arbitrator according to the agreement of the parties or the arbitratl rules; On request of one party, the court may take interim measures on the property, evidence or the conduct of the opposite side. The study on the judicial review on international commercial arbitral proceedings focuses on the active judicial support and judicial supervision from the judicial system in this chapter.Chapter IV goes to the judicial review on legal effect of international commercial arbitral award.Since the finality of arbitral awards is bound to carry out the corresponding execution of the res judicata effect, the judicial system is authorized to check its legal force by judicial review on it, in which the revocation of the arbitral award is the main way of recourse. Differences among countries on the legislation and judicial practice of revocation of the arbitral award will be introduced and reviewed while some suggestion on China’s rules of revocation of the arbitral award is brought out upon in this chapter.Chapter V goes to the argument of the judicial review on recognition and enforcement of arbitral awards. How to make a judge about the nationality of an international commercial arbitration award is the precondition for its recognization and enforcement.The standard adopted in The "New York Convention"(1958) is the cornerstone both for convenient recognition and enforcement of arbitral awards and refusal to recognition and enforcement of international commercial arbitration awards. The innovation and development in this issue is the judicial systems in a few countries have enforced some arbitral awards revoked by foreign courts, although the mainstream opinion in this area is that there is no power of enforcement for a revocatory award. It has been pointed out that there is some weekness in China’s legislation and judicial practice on admission and enforcement of international commercial arbitral awards, and correspondent advice for modification has followed.The coda of this paper is a brief summary that comprises three arguments.It begins with the summative evalution on the trend of contemporary legislation and judicial practice of judicial review on international commercial arbitration in the world, which shows moderate supervision on and full support to the greatest extent to international commercial arbitration. Then it is followed that the mainstream value mentioned above should be transplanted into Chinese arbitration law system because the tendency is based on the economics of law. Finally, it ends at some legislative proposals to amend Chinese arbitration law system.