在中国法视角下研究仲裁裁决的效力 - 以仲裁裁决的实质效力为中心

Abstract

Arbitration plays an increasingly significant role in the area of commercial arbitration settlement due to some characters of arbitration, i.e. efficiency and finality. It is commonly recognized that giving legal effects to arbitral award will not only conform to the expectation of the concerning parties, but will be beneficial to the execution of the court. It is not difficult to reach a consensus that the arbitral award is binding, so all the countries regulate that the arbitral award is final and binding in their legislations to represent the orientation of supporting arbitration. In China, the research on the effects of arbitral award is usually based on the study of court decisions. However, the arbitral award is different from the court decision, owing to the reason that the arbitral award cannot be enforced by the arbitration institution if one party refuses to implement the award. In order to clarify the scope of recognition and enforcement of arbitral award, it is necessary and urgent to pay attention to the research on the effects of arbitral award. This essay starts on Chinese “international” criteria for the judging the international commercial arbitration agreement, and then introduce how China People’s court identify the nationality of arbitral award. In addition, this essay also includes the content of effect of the arbitral award, especially focuses on the res judicata and the effect of enforcing. The reason why the res judicata and the effect of enforcing is important is that every different theory on the scope of these two effects of the arbitral award will lead to difference of the procedure of recognition and enforcement of arbitral award. Therefore, summarizing the content of effect of arbitral award is beneficial to the arbitration development of China, and also has theoretical value and practical meaning on the recognition and enforcement of international commercial arbitral award in China.