[ Abstract ] this article briefly introduces the legal basis for the recognition and enforcement of foreign arbitral awards in Chinese courts, illustrates the understanding and application of the seven grounds for refusal to recognize and enforce foreign arbitral awards stipulated in article 5 of the New York Convention by Chinese courts with typical cases, and summarized various measures taken by the Supreme People's Court to interpret the New York Convention in a unified manner nationwide, which embodies the basic judicial philosophy of Chinese courts in actively recognizing and enforcing foreign arbitral awards and supporting arbitration.

[ Keywords] Recognition and Enforcement; Foreign Arbitral Awards; New York Convention

With the all-round advancement of the construction of the Belt and Road Initiative, how to provide legal services and guarantee for the construction of  the Belt and Road Initiative has become a hot topic in legal practice. China is the first country to advocate the construction of the Belt and Road Initiative. How to improve judicial service and guarantee for the construction of the Belt and Road Initiative has become an epoch proposition and duty of Chinese courts. The construction of the Belt and Road Initiative is mainly international cooperation in trade and investment. Disputes arising from the commercial subject of the Belt and Road Initiative in this process will generally be resolved through mediation, arbitration, litigation and other diversified dispute resolution methods. Chinese courts provide judicial support or assistance to various dispute resolution methods according to the provisions of the law, including recognition and enforcement of foreign arbitral awards and foreign court decisions, etc. This article introduces the relevant situations of the recognition and enforcement of foreign arbitral awards by Chinese courts.

1. Legal basis for parties to apply to Chinese courts for recognition and enforcement of foreign arbitral awards.

China is a country with a tradition of statute law. Courts and judges must act according to the law. Article 283 of the Civil Procedure Law of the People's Republic of China (hereinafter referred to as the "Civil Procedure Law") provides the basic legal basis for how foreign arbitral awards are recognized and implemented in China. Awards of a foreign arbitration institution that need recognition and enforcement by a people's court of the People’s Republic of China, shall be applied in the intermediate people's court of the domicile of the person or the location of property subject to enforcement, the people's court shall handle in accordance with the international treaties concluded or acceded to by the People’s Republic of China, or in accordance with the principle of reciprocity. According to the regulation, the following problems should be paid attention to in practice:

First of all, if a foreign arbitral award needs to be recognized and enforced in China, the parties concerned shall apply directly to the court. Secondly, regarding the jurisdiction of the court, from the perspective of regional jurisdiction, it should be the court where the person subjected to execution has his domicile or where his property is located; From the perspective of level jurisdiction, it should be the intermediate people's court. If two or more courts have jurisdiction, the applicant can choose one of them to file an application, and there is no need to apply to two or more courts at the same time. In practice, some parties concerned are worried that the property in the place where the executed person is located is not sufficient to satisfy their creditor's rights, and they wish to apply to the courts in the places where several properties of the executed person are located respectively. According to the theory of private international law, once a foreign arbitral award has been recognized by a local court, it will be enforceable in China. if the property within the jurisdiction of the court that recognized the foreign arbitral award is not sufficient to satisfy the claimant's claims, the court may entrust other courts to enforce it on its behalf. Therefore, it is not necessary for the applicant to apply to more than two courts for recognition and enforcement of the same foreign arbitral award.

Thirdly, the court should handle it according to the provisions of international treaties in force for China, or in the absence of international treaties, according to the principle of reciprocity. As far as international treaties are concerned, in the area of multilateral treaties, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter referred to as the New York Convention), adopted in 1958 in New York under the leadership of the United Nations Commission on international Trade Law, has been approved and decided by the Standing Committee of the National People's Congress and entered into force on April 22, 1987. Today, the Convention has 157 Member States. [ 1 ] therefore, the Chinese courts will apply the provisions of the New York Convention to recognize and enforce the arbitration awards of the Member States of the New York Convention; In the field of bilateral treaties, China has signed bilateral treaties on mutual legal assistance in civil and commercial matters with 39 countries, 36 of which have entered into force and generally contain mutual recognition and enforcement of arbitral awards. With the exception of treaties with Turkey, other bilateral treaties on mutual recognition and enforcement of arbitral awards in civil and commercial matters all point to the application of the provisions of the New York Convention (Turkey was not a party to the New York Convention at that time, and since then Turkey has also acceded to the New York Convention). Although the law stipulates that foreign arbitral awards can be recognized and executed based on the principle of reciprocity in the absence of an international treaty foundation, due to the wide membership of the New York Convention, so far there have been no cases in which Chinese courts recognize and execute foreign arbitral awards based on the principle of reciprocity. Of course, if there is indeed a foreign arbitral award other than the New York Convention that needs to be recognized and enforced in Chinese courts, it can be handled in full accordance with the principle of reciprocity. The Chinese courts' understanding of the principle of reciprocity is changing from " factual reciprocity" to " presumption of reciprocity". [ 2 ] Their grasp of the principle of reciprocity is more loose, which theoretically provides a channel for more foreign arbitral awards to seek recognition and enforcement in Chinese courts.

In addition, “the award of a foreign arbitration institution” stated in Article 283 of the Civil Procedure Law shall be understood as an arbitration award made by a foreign arbitration institution in a foreign country. If it is an arbitral award made by an interim arbitral tribunal in a foreign country, can it be recognized and enforced by the Chinese court? The answer is yes, because the New York Convention provides a legal basis for this. According to Article 1, paragraph 2 of the New York Convention, the " arbitration award" under the New York Convention " refers not only to the award made by the arbitrators appointed by the project, but also to the award made by the permanent arbitration institutions submitted by the parties to arbitration.

Accordingly, foreign provisional arbitration awards can be recognized and enforced in Chinese courts in accordance with the provisions of the New York Convention. In fact, according to the literal expression of Article 283 of the Civil Procedure Law, there was once a case in which the parties concerned believed that the people's court had no legal basis to accept the parties' application for recognition and enforcement of foreign ad hoc arbitration awards. [ 3 ] for this reason, article 545 of the interpretation of the supreme people's court on the application of the Civil Procedure Law of the People’s Republic of China, No. 5 of the interpretation of the law [ 2015 ], stipulates: " where a party applies to the people's court for recognition and enforcement of an arbitration award made by ad hoc arbitration tribunal outside the territory of the People’s Republic of China, the people's court shall deal with it in accordance with Article 283 of the Civil Procedure Law.  ”

If it is an arbitration award made by a foreign arbitration institution within the territory of China, is the provisions of Article 283 of the Civil Procedure Law applicable? If the provisions of this article are applied, the guidelines will be directed to the New York Convention according to the provisions of this article. since the arbitral award made by foreign arbitral institutions in China is not made in the " territory of another contracting state", it is obvious that the provisions of the New York Convention cannot be applied to recognize and enforce it. The issue was raised in the " german springer company applied to Wuxi intermediate people's court of Jiangsu province for recognition and enforcement of the arbitration award made by ICC international court of arbitration in Shanghai", but the supreme people's court did not clarify the judicial attitude on the issue at that time. In fact, this is due to the fact that the criteria for determining the nationality of arbitral awards in China's domestic law are not clear, and the legislative emphasis is placed on the " arbitration institution", which is inconsistent with the criteria for determining the nationality of arbitral awards mainly based on the " place of arbitration" in international treaties and international arbitration practice. In this regard, I personally tend to identify the nationality of the arbitration award according to the " arbitration place standard" in judicial practice, i.e. in individual cases, I can think that the arbitration award made by a foreign arbitration institution within the territory of China is not a foreign arbitration award, but a Chinese foreign arbitration award, thus avoiding the contradiction of the above applicable law. ( relevant link: Gao Xiaoli: the jurisdiction shall determine the origin of the arbitration award according to the place of arbitration and not the place of the arbitration institution ) [ 4 ] the reasons will not be repeated.

In addition, according to the declaration of " commercial reservation" made by China upon accession to the New York Convention in accordance with article 1, paragraph 3, of the convention, China applies the convention only to disputes arising from contractual and non-contractual commercial legal relations under Chinese law. According to article 2 of the notice of the supreme people's court on the implementation of the convention on the recognition and enforcement of foreign arbitral awards to which China is a party, the so-called " contractual and non-contractual commercial legal relations" refer specifically to economic rights and obligations arising from contracts, torts or in accordance with relevant legal provisions, such as the sale of goods, lease of property, engineering contracting, processing contracts, technology transfer, joint ventures, cooperative operations, exploration and exploitation of natural resources, insurance, credit, labor services, agency, consulting services, and passenger and cargo transportation, product liability, environmental pollution, maritime accidents and disputes over ownership at sea, civil aviation, railway and highway. Therefore, the arbitration awards made by foreign arbitration institutions or temporary arbitration tribunals on investment disputes between host countries and investors outside the territory of China cannot be recognized and enforced in Chinese courts by applying the provisions of the New York Convention. However, with the development of economy, China has become a major foreign investment country. arbitration clauses are generally included in the new generation of bilateral investment protection agreements signed by China, and arbitration settlement methods other than the international center for settlement of investment disputes ( ICSID ) under the 1965 " convention on settlement of investment disputes between countries and nationals of other countries" have been agreed upon. [ 5 ] if the resulting arbitration award is not automatically implemented, how to solve its recognition and enforcement problems through domestic courts is worth in-depth study.

Ii. criteria for Chinese courts to review foreign arbitral awards - understanding and application of article 5 of the New York Convention

Since the arbitral awards in the cases of application for recognition and enforcement of foreign arbitral awards accepted by Chinese courts in current judicial practice are all awards under the New York Convention, this article focuses on the introduction of the application of the New York Convention by Chinese courts.

Article 5, paragraph 1, of the New York Convention stipulates: " an award may only be refused recognition and enforcement upon the request of a competent authority of the place where the award is invoked to file an application for recognition and enforcement if it proves that there are any of the following circumstances: ( a ) if the parties to the agreement mentioned in article 2 have some incapacity under the law applicable to them, or if the agreement is invalid under the law of the party as the basis of the agreement, or if it does not specify the law to be on time and is invalid under the law of the country where the award is made; (b) by the citation of award of made not received on the assigned appropriate notice of the arbitrator or of the arbitration proceedings, or because he so, failed to defend their; ( c ) if the dispute dealt with in the award is not the subject of arbitration or is not included in its terms, or the award contains a decision on matters beyond the scope of arbitration, but the decision on matters to be submitted to arbitration may be divided into matters not submitted to arbitration, the decision on matters to be submitted to arbitration in the award may be recognized and enforced; (d) composition of the arbitral authority or the arbitral procedure and the agreement does not match, or no agreement with the laws of the country are inconsistent; (E) award of no binding force, or by ruling the country where the ruling basis or cancel or stop the execution of the competent authorities of the state law. Paragraph 2 stipulates: " if the competent authority of the country where the application is made for recognition and enforcement finds that one of the following circumstances exists, it may also refuse to recognize and enforce the arbitration award: ( a ) under the laws of that country, the dispute cannot be settled by arbitration; (b) the recognition or enforcement of the award is contrary to the public policy of that country. This article clarifies the reasons why the courts of the contracting States may refuse to recognize and enforce foreign arbitral awards. moreover, the five situations stipulated in paragraph 1 are the reasons put forward by the parties and examined by the courts. only the two situations stipulated in paragraph 2 are the reasons why the courts can voluntarily examine them ex officio. The supreme people's court clarified this point of view as early as 1999 when handling the Shanghai municipal higher people's court's request for instructions on " McCoy Neptune co., ltd. application for recognition and enforcement of the arbitration award of the arbitration tribunal of the Zurich chamber of commerce". The supreme people's court also clearly pointed out in ( 2016 ) the reply to the Hubei provincial higher people's court on the application of Paul Reinhart company to the intermediate people's court of Yichang city, Hubei province for recognition and enforcement of the arbitration award made by the international cotton association in Britain, that " the people's court must examine whether the arbitration award is denied recognition and enforcement at the request of the parties concerned, and if not requested by the parties concerned, the people's court shall not examine it; The people's court may, on its own initiative, examine whether the arbitration award violates the arbitrability and public policies stipulated in article 5, paragraph 2, of the New York Convention. In this case, the respondent Hubei Qinghe textile co., ltd. did not raise the claim of non-recognition and enforcement of the arbitration award in the case of article 5, paragraph 1, of the New York Convention. your court examined the case ex officio and plans to refuse recognition and enforcement of the award in accordance with article 5, paragraph 1, of the New York Convention, which lacks the corresponding legal basis.  ” [6]

In judicial practice, some local courts used to apply the provisions of article 4 of the New York Convention and were prepared to rule against the recognition and enforcement of foreign arbitral awards, which were corrected by the supreme people's court. Article 4 of the New York Convention stipulates: " 1. in order to obtain the recognition and enforcement referred to in the preceding article, one of the claims for recognition and enforcement shall be submitted at the time of the claim: ( a ) the original or official copy of the original award; and ( b ) the original or official copy of the agreement referred to in article 2. If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language. They had many talks with the native, the guide acting as interpreter. It can be seen that this article is about the provisions on the materials that should be submitted to apply for recognition and enforcement of foreign arbitral awards. If the parties apply to the court for recognition and enforcement of foreign arbitral awards and fail to submit corresponding materials in accordance with the requirements of this article, the court shall require the parties to submit or make supplementary submissions. if the parties are indeed unable to submit relevant materials, for example, if the parties in a case are unable to submit the original or certified copy of the arbitral award, the court shall refuse to accept the application or rule to reject the application instead of ruling to refuse recognition and enforcement of the arbitral award.

The supreme people's court stressed that only under one of the circumstances stipulated in article 5 of the New York Convention can the people's court decide to refuse to recognize and enforce foreign arbitral awards, and strictly explain every reason so as to raise the threshold for refusing to recognize and enforce foreign arbitral awards. The following is a detailed description of the supreme people's court's understanding of the seven grounds for refusing recognition and enforcement of foreign arbitral awards stipulated in article 5 of the New York Convention.

( a ) whether there is a valid arbitration agreement

According to paragraph 1 ( a ) of article 5 of the New York Convention, if the arbitration agreement is invalid according to the law chosen by the parties or the law of the place of arbitration, the court may refuse to recognize and enforce the foreign arbitral award. In judicial practice, attention should be paid to the fact that there is no room for the application of the local law of the court at this time. In practice, one party brings a lawsuit to the Chinese court to confirm the validity of the arbitration agreement before or after the other party brings an arbitration outside the country. After accepting the case of confirming the validity of the foreign-related arbitration agreement, the Chinese court first determines which country or region's laws should be applied to determine the validity of the arbitration agreement according to China's conflict norms, and then determines whether the arbitration agreement is valid or invalid. Regarding the determination of the applicable law for the validity of foreign-related arbitration agreements, according to the provisions of article 18 [ 7 ] of the law of the People’s Republic of China on the application of foreign-related civil relations law and article 14 [ 8 ] of the interpretation of the supreme people's court on several issues concerning the application of the law of the People’s Republic of China on the application of foreign-related civil relations law ( I ), the applicable law for determining the validity of arbitration agreements chosen by the parties shall first apply. In the absence of an agreement between the parties, the law of the place of arbitration or the place where the arbitration institution is located as agreed by the parties shall apply. If there is no such agreement between the parties, the provisions of the local court law, i.e. the Chinese law, shall be applied to determine the validity of the arbitration agreement involved. According to the above provisions, the Chinese courts may apply the provisions of the local law when determining the validity of the foreign-related arbitration agreement, which is inconsistent with the law for determining the validity of the arbitration agreement stipulated in article 5, paragraph 1 ( a ), of the New York Convention - the law chosen by the parties or the law of the place of arbitration. This was the case when castle applied to Zhongshan intermediate people's court of Guangdong province for recognition and enforcement of the Australian arbitration award. Tcl company applied to Zhongshan intermediate people's court for confirmation of the validity of the arbitration agreement. in this case, because the parties did not clearly agree on the law for confirmation of the validity of the arbitration agreement, nor did they clearly agree on the place of arbitration and the arbitration organization, the provisions of the court's place of law - China law were applied to confirm the validity of the arbitration agreement involved. Because it does not conform to the provisions of articles 16 and 18 of the arbitration law of the People’s Republic of China, Zhongshan intermediate people's court, after consulting the supreme people's court of Guangdong province, found the arbitration agreement invalid. However, the arbitration tribunal believed that it had jurisdiction over the contract dispute between castle and TCL and made an arbitration ruling before Zhongshan intermediate people's court made a ruling that the arbitration agreement was invalid. Castle applied to Zhongshan intermediate people's court for recognition and enforcement of the arbitration award, and TCL company raised the defense reason for refusing recognition and enforcement. Zhongshan intermediate people's court asked the supreme people's court for instructions. the supreme people's court pointed out in reply No. 46 ( 2013 ) to the people's court that the arbitration award was made earlier than the effective time of the court ruling in our country. moreover, TCL company did not raise any objection to the invalidation of the arbitration clause in the arbitration procedure, but instead submitted a counter-claim to the arbitration tribunal. based on this, the arbitration tribunal determined the validity and jurisdiction of the arbitration clause, which was in conformity with the laws and arbitration rules of the place of arbitration, and there was no infringement of China's judicial sovereignty. In this case, although there is a conflict between the validity of the same arbitration clause in the foreign arbitration award and the effective ruling of our court, it is not enough to constitute a violation of our country's public policy. In this case, the supreme people's court did not apply the provisions of paragraph 1 ( a ) of article 5 of the New York Convention, that is, considering that there is no room for the application of the court law to the determination of the validity of the arbitration agreement at the stage of refusing to recognize and enforce foreign arbitral awards, and considering that the ruling made by the Chinese court that the arbitration agreement is invalid after the arbitration award is made, it does not consider that the arbitration award involved in this case constitutes a violation of China's public policy.

If the parties fail to reach an arbitration agreement, can the court apply the provisions of article 5, paragraph 1 ( a ), of the New York Convention to refuse to recognize and enforce the arbitration award? The supreme people's court, in its reply No. 43 ( 2001 ) to " Singapore yidam Asia pte ltd. applying for recognition and enforcement of the arbitration award made by the British London cocoa association", held that " the precondition for the arbitration clause or arbitration agreement to take effect independently is that the parties concerned reach an agreement on the settlement of the dispute through arbitration. In this case, according to the fax between Singapore's yidam Asia pte ltd. and Wuxi Huaxin cocoa food co., ltd., the two parties did not reach an agreement to settle the dispute arising from the purchase of cocoa beans through arbitration. The British cocoa association in London has no factual or legal basis for arbitrating related disputes based on the arbitration clause unilaterally drawn up by Singapore's Eastman Asia pte ltd. According to article 269 of our country's Civil Procedure Law and the relevant provisions of the New York Convention to which our country is a party, our country's courts should refuse to recognize and enforce the arbitration award in this case.  ” [ 9 ] the supreme people's court reiterated the above-mentioned opinion in reply No. 32 ( 2014 ) to the Zhejiang provincial higher people's court on " allenbao cotton company's application to the Ningbo intermediate people's court of Zhejiang province for recognition and enforcement of the arbitration award made by the international cotton association in the United kingdom", i.e., [ 10 ] that in the absence of evidence to prove that the parties have reached an agreement on the arbitration of disputes arising from the cotton purchase and sale agreement in the case, the international cotton association has no basis for accepting the case and making the arbitration award unilaterally and can refuse to recognize and enforce the arbitration award in accordance with the provisions of the New York Convention. None of the above replies explicitly pointed out the application of the specific provisions of the New York Convention, but the author believes that it can be classified into article 5, paragraph 1 ( a ). Article 2 of the New York Convention is about the provisions of the arbitration agreement. In fact, the New York Convention itself emphasizes two parts: one is to require the contracting parties to interpret the arbitration agreement as effectively as possible, and the other is to require the contracting parties to recognize and enforce foreign arbitral awards as much as possible. However, even if the foreign arbitral award is made without an arbitration agreement in conformity with article 2 of the convention, the people's court can only make a ruling on refusing to recognize and enforce the arbitral award in accordance with article 5, paragraph 1 ( a ), of the convention, and cannot make a ruling on refusing to recognize and enforce the arbitral award in accordance with article 2.

( 2 ) whether the party concerned has not been given the opportunity to make a full statement without proper notice

In the process of one party applying to the court for recognition and enforcement of foreign arbitral awards, the respondent often raises various defense reasons for refusing recognition and enforcement, which often involve this reason, but it is generally not supported by the court. For example, in the " german shuleda company applies to Dandong intermediate people's court of Liaoning province for recognition and enforcement of the arbitration award of the german Hamburg exchange commodity association", one of the defenses raised by the respondent Dandong junao food co., ltd. is that it has not received the relevant arbitration procedures. The supreme people's court pointed out in reply No. 31 ( 2014 ) to minsi - ta - zi that according to the facts contained in the request for instructions, the arbitration tribunal had mailed documents such as the appointment, complaint and subpoena of the arbitrator to Dandong junao food co., ltd. by registered mail. according to the certificate issued by german post co., ltd., the mail had " been delivered to the legal receiver". Dandong junao food co., ltd. only claimed that it had not received the materials sent, but did not give sufficient evidence to prove that the notification procedure of the arbitration tribunal did not meet the requirements of " appropriate notification" in article 5, paragraph 1 ( b ), of the New York Convention and thus it " failed to defend". Therefore, the arbitral award involved in this case does not constitute the situation stipulated in this article and cannot be used to refuse to recognize and enforce the arbitral award involved. [11]

( 3 ) as to whether it constitutes an over - cut

According to article 5, paragraph 1 ( c ), of the New York Convention, the court will examine whether the matters decided by the arbitration exceed the scope of the arbitration agreement and whether they exceed the scope of the arbitration request filed by the applicant. In judicial practice, the respondent often requests to be denied recognition and enforcement on the grounds that the arbitration award constitutes a super award, and some cases have the support of the court. For example, in the case of " us gmi company applying to Wuhu intermediate people's court of Anhui province for recognition and enforcement of the arbitration award made by London metal exchange of England", the supreme people's court said in reply No. 12 ( 2003 ) to the Anhui provincial higher people's court that the arbitration tribunal in this case accepted the case according to the arbitration clause in the sales contract signed between us gmi company and Wuhu smelter. as far as the scope of arbitration is concerned, the arbitration tribunal can only adjudicate the dispute between us gmi company and Wuhu smelter, but it will, based on the application of us gmi company, decide the dispute between us gmi company and us gmi company. At the same time, it is pointed out that if the part of the arbitration tribunal entitled to arbitration is distinguishable from the excess part, the part of the arbitration tribunal entitled to award shall be recognized and enforced. [12]

( 4 ) whether the arbitration procedure violates the arbitration rules and the laws of the place of arbitration

This reason is often cited by the parties as a reason for refusing to recognize and enforce foreign arbitral awards in practice, and has won the support of the court in some cases. For example, in the " application for recognition and enforcement of the arbitration award made by Singapore international arbitration center in Singapore by noble resources international pte ltd." the arbitration clause signed between noble resources international pte ltd. and Shanghai Xintai international trade co., ltd. stipulates that " disputes and claims shall be submitted to Singapore for arbitration in accordance with the arbitration rules of Singapore international arbitration center in effect at that time, and the arbitration tribunal shall be composed of three arbitrators". The arbitration rules applicable when the dispute involved in the case is submitted to arbitration are the fifth edition of the arbitration rules of the Singapore international arbitration center in 2013, in which article 5 provides for " expedited procedures". The supreme people's court pointed out in its reply No. 50 ( 2017 ) to the Shanghai higher people's court that Singapore international arbitration center applied " expedited procedures" for arbitration based on the written application of noble resources international pte ltd., which was in compliance with the provisions of the arbitration rules. However, according to the provisions of article 5, paragraph 2, of the arbitration rules, the arbitration rules do not exclude the application of other arbitration tribunal formation methods in the " expedited procedure". nor does the arbitration rules stipulate that the chairman of Singapore international arbitration center still has the power to enforce the sole arbitration provision of article 5, paragraph 2, item 2, when the parties have agreed to apply other arbitration tribunal formation methods. Since the parties to this case have clearly agreed in the arbitration clause that the arbitration tribunal shall be composed of three arbitrators, and have not ruled out the application of this method of composition in the arbitration " expedited procedure". Therefore, the application of the " expedited procedure" for arbitration does not affect the basic procedural rights of the parties to obtain the three arbitrators to conduct arbitration in accordance with the arbitration clause. The Singapore international arbitration center decided to adopt the method of organizing the sole arbitrator even though the arbitration clause stipulated that the arbitration tribunal should be composed of three arbitrators and Shanghai Xintai international trade co., ltd. explicitly opposed the sole arbitration. this constituted a situation where " the composition of the arbitration organ does not conform to the agreement between the different institutions" as stipulated in article 5, paragraph 1 ( d ), of the New York Convention. Therefore, they agreed to refuse to recognize and enforce the arbitration award involved in the case.

( 5 ) whether the arbitration award is final

The arbitration practice circle once talked about the French court's recognition and enforcement of the arbitration award that has been revoked by the court of the country where the arbitration was held. as a result, the provisions of article 5, paragraph 1 ( e ), of the New York Convention and article 7, paragraph 1, of the convention have aroused widespread concern. However, at present, the Chinese courts have not accepted cases in which the parties have requested to refuse to recognize and enforce foreign arbitral awards in accordance with article 5, paragraph 1 ( e ), of the New York Convention. at present, judicial practice has not refused to recognize and enforce foreign arbitral awards on the basis of this reason.

( 6 ) whether the arbitration matters violate arbitrability

According to paragraph 2 ( a ) of article 5 of the New York Convention, if the matter of the arbitration award cannot be settled through arbitration according to the provisions of Chinese law, the Chinese court may refuse to recognize and enforce the arbitration award. So far, there has been only one case in which Chinese courts have refused to recognize and enforce foreign arbitral awards on this ground. The supreme people's court pointed out in its reply No. 33 ( 2009 ) by min si ta zi that the dispute in this case arose from the arbitration applicant Wu Chunying, as his deceased husband's legal successor, claiming his contractual rights to the Mongolian arbitration tribunal according to the arbitration clause in the contract involved. If the arbitration award involved does not involve inheritance matters, it may be recognized and enforced; However, the main content of the arbitration award involved in the case is to confirm Wu Chunying's legal successor status and the investment property rights due to that status, and has not dealt with commercial disputes such as the company's continued operation and cancellation. Article 3 of the arbitration law of the People’s Republic of China stipulates that [ 13 ] inheritance disputes cannot be arbitrated. therefore, according to article 5, paragraph 2 ( a ), of the New York Convention, the arbitration award will not be recognized and enforced. [14]

( 7 ) whether it violates public policies

The New York Convention regards public policy clauses as one of the grounds for refusing to recognize and enforce foreign arbitral awards, and authorizes courts of various countries to interpret public policy clauses in specific cases according to their own actual conditions, which is in line with the wishes of various countries, thus attracting more countries to join the convention. Judging from the judicial practice of various countries, the courts of various countries hold cautious attitudes towards public policy clauses, and so do the Chinese courts. Up till now, although in many cases the parties have raised the defense of violating China's public policies, the vast majority of them have not received the support of the Chinese courts. As of now, there is only one case in which Chinese courts refuse to recognize and enforce foreign arbitral awards in accordance with article 5, paragraph 2 ( b ), of the New York Convention, [ 15 ] i.e., " the case in which haimu fahm company, Margot international trading company and surama media co., ltd. apply for recognition and enforcement of arbitral awards made by ICC international court of arbitration". The supreme people's court, in its reply of ( 2008 ) min si ta zi No. 11 to the higher people's court of Sadon province, held that the arbitration clauses agreed in the joint venture contract between heimufam, Margo international trading company, surama media co., ltd. and Yongning limited only restrict disputes between the parties to the joint venture contract over the joint venture, and cannot restrict disputes over the lease contract between Yongning company and the joint venture company. In the case of arbitration of a dispute over a joint venture contract, ICC international court of arbitration tried and ruled on the dispute over a lease contract between Yongning company and the joint venture company, which went beyond the scope of the arbitration agreement stipulated in the joint venture contract. Under the circumstance that the relevant Chinese courts have decided to preserve the property of the joint venture company and make judgments on the lease contract dispute between Yongning company and the joint venture company, ICC international court of arbitration has again tried and ruled on the lease contract dispute between Yongning company and the joint venture company, which violates China's judicial sovereignty and the jurisdiction of the Chinese courts. Therefore, according to article 5, paragraphs 1 ( c ) and 2 ( b ), of the New York Convention, the arbitration award involved in the case should be refused recognition and enforcement.

Iii. efforts made by the supreme people's court to unify the interpretation of the New York Convention in China

The New York Convention has opened up channels for international commercial arbitration awards to circulate internationally. the New York Convention has attracted many Member States and won universal respect, setting an example of international treaties in the world. The supreme people's court has always been supportive of international commercial arbitration, actively creating an arbitration-friendly legal environment, paying special attention to the unified and reasonable interpretation of the New York Convention in China's judicial practice, and doing its utmost to recognize and implement foreign arbitral awards. China has a vast territory with more than 400 intermediate people's courts in more than 30 provinces, which is more meaningful to the unified understanding and application of the New York Convention.

( I ) issuing executive notices

After the 18th meeting of the standing Committee of the 6th national people's congress approved and decided to join the New York Convention on December 2, 1986, before the convention came into force for China, the supreme people's court issued the circular of law ( economic ) No. [ 1987 ] No. 5 on the implementation of the convention on the recognition and enforcement of foreign arbitral awards to which China is a party on April 10, 1987, requiring high and intermediate people's courts to study the convention carefully and implement it effectively. At the same time, several issues that need to be paid attention to in the implementation of the convention are stipulated, including the aforesaid understanding of reciprocal reservations and commercial reservation declarations. in addition, the court that accepts the case, the standard for grasping article 5 of the convention, and the time limit for applying for recognition and enforcement of foreign arbitral awards are also stipulated.

( ii ) establish a reporting system

The supreme people's court issued law No. 18 [ 1995 ] of the people's court on August 28, 1995 on handling issues related to foreign-related arbitration and foreign arbitration matters, establishing a reporting system for cases of refusal to recognize and enforce foreign arbitral awards. it clearly stipulates that where a party applies to the people's court for recognition and enforcement of the awards of foreign arbitral institutions, the people's court must report to the higher people's court under its jurisdiction for review before ruling on refusal to recognize and enforce the awards. If the higher people's court agrees to refuse recognition and execution, it shall report its examination opinions to the supreme people's court; Only after the supreme people's court has replied can it decide to refuse recognition and execution. The supreme people's court intends to strictly supervise the refusal of courts at all levels to recognize and enforce foreign arbitral awards through this system and to minimize the number of cases of refusal to recognize and enforce foreign arbitral awards.

After more than 20 years of judicial practice, the reporting system has been widely praised by the international commercial arbitration community. On December 26, 2017, the supreme people's court issued the relevant provisions on nuclear reporting in arbitration judicial review cases ( 2017 ) No. 21, which raised the reporting system to judicial interpretation and expanded its application to domestic commercial arbitration while specifying the specific requirements for nuclear reporting. The judicial interpretation has been implemented since January 1, 2018.

( iii ) formulation of judicial interpretation

On January 30, 2015, the supreme people's court issued interpretation No. 5 [ 2015 ] on the application of the Civil Procedure Law of the People’s Republic of China, which made relevant provisions on the recognition and enforcement of foreign arbitral awards. In addition to the above, article 546 clearly stipulates the procedure for distinguishing recognition from enforcement, that is, if the foreign arbitral award needs to be enforced by the People’s Republic of China court, the parties concerned shall first apply to the people's court for recognition. The people's court shall, after examining and ruling for recognition, execute it according to the provisions of part 3 of the Civil Procedure Law. If a party only applies for recognition but does not apply for enforcement at the same time, the people's court will only examine whether recognition should be recognized and make a ruling. Article 547 stipulates that the period during which the parties apply for recognition and enforcement of foreign arbitral awards shall be governed by the provisions of article 239 of the Civil Procedure Law, [ 16 ] i.e. the period for application for enforcement shall be 2 years; It is also clearly stipulated that if the parties only apply for recognition but do not apply for enforcement at the same time, the period of application for enforcement shall be recalculated from the effective date of the ruling made by the people's court on the application for recognition, thus avoiding the adverse influence of the parties on the period of application for enforcement caused by the review period of application for recognition of foreign arbitral awards and as far as possible not refusing to enforce foreign arbitral awards on the grounds that it exceeds the period of application. Article 548 clearly requires that the people's court shall form a collegial panel to examine cases of recognition and enforcement of foreign arbitral awards; The people's court shall serve the application on the respondent; The respondent may state his opinion. More importantly, the article clearly stipulates that the ruling made by the people's court after examination shall take effect as soon as it is served. In other words, the people's court's ruling on the judicial review of foreign arbitral awards is also " final", and the parties concerned cannot appeal or apply for retrial. In order to improve the efficiency of arbitration, at the same time considering that judicial review of arbitration is a special procedure, there is no way to provide further relief to the parties involved in such cases.

In addition, the supreme people's court issued the interpretation ( 2017 ) No. 22 " regulations on several issues concerning the hearing of arbitration judicial review cases" on December 26, 2017, which made uniform provisions on the handling procedures of arbitration judicial review cases, including cases in which the parties apply for recognition and enforcement of foreign arbitral awards. it has strong operability and is a supplement to the above-mentioned judicial interpretation.

( iv ) case responses

Through the above reporting system, the supreme people's court accepted a large number of requests from local courts for instructions on refusing to recognize and execute foreign arbitral awards. the judicial attitude was clarified by way of reply. the cases mentioned in this article are all cases answered by the supreme people's court. This is an important way for the supreme people's court to unify the discretion standard of the New York Convention, especially article 5. The reply of the supreme people's court is published in the series of " guidance on foreign commercial maritime trials" edited by the people's four divisions of the supreme people's court. it is published by the people's court publishing house and has been published to the 32nd series. The series has a column of " request for instructions and replies", which includes all kinds of original replies made by the supreme people's court on arbitration judicial review cases as well as the request for instructions report of the local court and provides first-hand information.

( 5 ) information construction

With the development of science and technology, the supreme people's court has paid special attention to unifying judgment standards through information technology and providing judges with a big data information system for case retrieval. In addition, relevant information is released through the national foreign-related commercial maritime trial network. The supreme people's court is currently building an information management platform for arbitration judicial review cases, providing a unified management platform for courts at all levels across the country to handle arbitration judicial review cases. the procedures will be more transparent and will also be more conducive to the unified control of adjudication scales.

( VI ) training of judges

The supreme people's court organizes the training of foreign commercial maritime judges in a planned way every year, focusing on the handling of judicial review cases in international commercial arbitration. senior judges will publicize the understanding and application of the New York Convention, deepen their understanding and unify their understanding. At the same time, the supreme people's court has continuously strengthened its ties with the international trade law commission and its regional center in Asia and the Pacific, strengthened its communication and contacts with international arbitration organizations and arbitration associations, actively dispatched personnel to participate in international conferences, continuously raised the level of understanding of the New York Convention and studied the frontier issues of international commercial arbitration, and actively established the judicial concept of supporting arbitration.

Editor's note: This article was written in 2014. Since then , the Supreme People's Court has established four bases for researching and ascertaining foreign laws, namely Shenzhen Qianhai Cooperation Zone People’s Court，Benchmark Chambers International, the China University of Political Science and Law, and the Southwest University of Political Science and Law . Please check out updates on this issue in column “Foreign Law Ascertainment” under “Services”.

[ 1 ] see http: / / www.uncitral.org /, January 12, 2018.

[ 2 ] as the principle of reciprocity has a large scope of application in the field of foreign courts' judgments in civil and commercial matters, the interpretation of the principle of reciprocity by Chinese courts is mainly reflected in this field. On June 8, 2017, the second China-ASEAN judges' forum held in Nanning, Guangxi, China passed the Nanning declaration, which stipulated in item 7: " in the judicial process of recognizing and executing the civil and commercial judgments of the other country, if there is no precedent in the courts of the other country for refusing to recognize and execute the civil and commercial judgments of the other country on the grounds of reciprocity, to the extent permitted by its domestic law, it can be presumed that there is a reciprocal relationship with the other country.  ” The consensus adopted the criterion of " presumption of reciprocity", that is, as long as there is no evidence that ASEAN Member States have refused to recognize and implement the judgment of the Chinese court on the grounds of reciprocity, it is presumed that there is a reciprocal relationship between the two countries. This is a major change in the previous judicial practice that requires foreign courts to recognize and implement the facts of China's judgments.

[ 3 ] in the case of " application of Australian castle company to Zhongshan intermediate people's court of Guangdong province for recognition and enforcement of the arbitration award made by the Australian interim arbitration tribunal", the respondent TCL company took this as one of the defense grounds, believing that the court had no jurisdiction over the case.

[ 4 ] see Gao Xiaoli: " the jurisdiction shall determine the nationality of the arbitration award according to the place of arbitration and not the place of the arbitration institution", people's justice case, No. 20, 2017.

[ 5 ] for example, article 13 of the agreement between the government of the People’s Republic of China and the government of the United Mexican States on the promotion and mutual protection of investment ( 2008 ) stipulates: " … 3. the investor in dispute may submit his claim to arbitration according to the following rules: ( 1 ) the convention on the settlement of investment disputes between States and nationals of other countries ( hereinafter referred to as the" Washington convention " ), provided that both parties to the dispute and the parties to which the investor belongs are parties to the Washington convention; ( 2 ) the international center for settlement of investment disputes has additional facilitation rules if one of the parties to the dispute or the party to which the investor belongs is not a party to the Washington convention; ( iii ) arbitration rules of the United nations commission on international trade law; Or ( 4 ) any other arbitration rules agreed by the parties to the dispute … ".

[ 6 ] see the fourth division of the civil trial of the supreme people's court: guidance on China's foreign-related commercial maritime trial ( volume 1, 2016 ), people's court press, 2016 edition, pp. 116 - 117.

[ 7 ] this article stipulates: " the parties may agree to choose the law applicable to the arbitration agreement. If the parties have no choice, apply the arbitration law of the location or the place for arbitration law.

[ 8 ] this article stipulates: " if the parties have not chosen the law applicable to the foreign-related arbitration agreement, nor have they agreed on the arbitration institution or place of arbitration, or if the agreement is unclear, the people's court may apply the law of the People’s Republic of China to determine the validity of the arbitration agreement.  ”

[ 9 ] see part 4 of the civil trial of the supreme people's court: " guidance and research on foreign-related commercial maritime trials in China" ( volume 3, 2003 ), people's court press, 2003 edition, p. 97.

[ 10 ] see the fourth division of the civil trial of the supreme people's court: guidance on foreign-related commercial maritime trials ( volume 2, 2014 ), people's court press, 2014 edition, pp. 105 - 106.

[ 11 ] ibid., pp. 100 - 101.

[ 12 ] see the fourth division of the civil trial of the supreme people's court: guidance on foreign-related commercial maritime trials ( volume 1, 2004 ), people's court press, 2014 edition, pp. 30 - 31.

[ 13 ] the article stipulates: " the following disputes cannot be arbitrated: ( 1 ) disputes over marriage, adoption, guardianship, support and inheritance; (2) administrative disputes that laws require to be handled by administrative authorities;

[ 14 ] see part 4 of the civil trial of the supreme people's court: " guidance on foreign-related commercial maritime trials" ( part 2, 2009 ), people's court press, 2009 edition, p. 97.

[ 15 ] see Gao Xiaoli: " analysis of public policies applied in the process of recognition and enforcement of foreign arbitral awards by Chinese courts", China arbitration and justice, August 4, 2009.

[ 16 ] this article stipulates: " the application period is two years. Application execution of the suspension of the prescription, the interruption of the application of the law of the suspension, interruption of the provisions of the suspension. During the calculation of the provisions of the preceding paragraph, the last day of the period of performance specified by the legal document; If the legal document specifies performance in stages, the time limit shall be calculated from the last day of the period specified for each stage of performance. The legal document does not specify performance period, calculated from the date of entry into force from legal documents.

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*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.