Research On The Judicial Review Of The Arbitral Award Based On Violation Of "One-Trial Finality"

The principle of “One-Trial Finality” is one of the basic legal principles of arbitration,and it is the reason why arbitration remains efficient and fair.It emphasizes the finality of arbitral awards and precludes parties from raising repeated arbitration based on the same issue,which is important for arbitration to maintain as an efficient dispute resolution method and to guarantee the stability of legal relationships between parties.In practice,however,there are many cases where parties raise repeated arbitration,and the conflicting awards are made due to the independence of the arbitral tribunal.In this regard,the other party would apply to the court to set aside the later arbitral award on the ground that it is contrary to the principle of “One-Trial Finality”,so as to protect its legitimate rights and interests in the earlier award.However,the judicial decisions on this matter are inconsistent in practice between the different courts,within the same court and even the supreme court due to the lack of specific rules in Arbitration Law which should define the factors of “One-Trial Finality”.To be more specific,the courts often apply the “Ne Bis in Idem” rule to identify whether there are conflicting arbitral awards.However,due to the ambiguity of the standard of “Ne Bis in Idem”,there are two methods of judicial review concerning the repeated arbitration.One is to identify the nature of “One-Trial Finality” as a procedural issue,which grants the power of judicial review to the courts.The other one is to identify the nature of “One-Trial Finality” as a substantive issue,which stands as the ground for the courts to refuse judicial review.Even in the cases where the court review the repeated arbitration,the grounds for setting aside the conflicting awards are also inconsistent,mainly including “violation of procedure” and “no right for arbitration” under Arbitration Law.However,none of these grounds are exactly suitable for setting aside the repeated arbitral awards.In order to enrich the theory of “One-Trial Finality” and to provide more research perspectives,this paper theoretically and empirically analyzes the theory of“Res Judicata” and the judicial review of the arbitration award in violation of “Res Judicata” in other law regions from a comparative perspective.“Res judicata” means the binding and final nature of an arbitral award,and its negative effect is also to exclude the repeated arbitration.The system of “Res Judicata” is mature although it differs to some extent in different jurisdictions in the continental law system and common law system.Therefore,in practice,the decisions of judicial review made by these courts are relatively consistent.To be more concrete,the continental law system adopts the theory of “Subject of Action” and the common law system adopts the theory of “Claim Preclusion” to identify the identity of “Action”.Although the theories differ,both of them would ascertain the specific nature of the case and the substantive rights and obligations.Therefore,most of the courts from the two legal systems would refuse to review the “Res Judicata” issue either on the ground that the issue falls within the admissibility of the arbitral tribunal or that the issue is a substantive dispute.Besides,there are some countries which affirm the right of courts to review the issue based on the violation of public policy.Considering the circumstances in China,neither the approach of refusal of review based on substantive nature nor the approach of setting aside the repeated awards on the grounds of “violation of procedure” and “no right for arbitration” is suitable.However,it is also inappropriate to completely exclude judicial review by reference to the other jurisdictions,for the reason that it would be difficult to maintain the “One-Trial Finality” principle.In this regard,the courts shall be authorized to conduct limited substantive review of the issues concerning “One-Trial Finality”,so as to ensure the substantive fairness and meanwhile the efficiency value of arbitration.This method could also reconcile the contradiction between the principle of procedural judical review and the actual needs of substantive review.Besides,as to the grounds for setting aside the repeated awards,the definition of “violation of procedure” and “no right for arbitration” should be expanded to cover the entire arbitration proceeding,and the circumstances of repeated arbitration respectively.By specifying the relevant rules concerning how to identify the repeated arbitration,whether the courts have right to make judicial review and which legal grounds should be chosen to set aside the repeated awards,the problem of inconsistent judgments could be resolved and it would definitely enhance the credibility of arbitration in China.