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《仲裁法》修訂背景下境外仲裁機構在中國內地仲裁的問題研究
Author(s)
Date Issued
2024
Publisher
上海市法學會
Citation
在上海市法學會 (主編). (2024). 法治實務集刊2023年第2卷-仲裁工作研究文集 (第118-131頁). 上海市法學會.
Type
Book Chapter
Abstract
隨著近年來國務院發布的一系列支持境外仲裁機構在我國內地開展仲裁的政策文件,引進境外仲裁機構儼然已成為我國仲裁制度改革的新亮點.但是,由於我國仲裁法律的根本缺陷,境外仲裁機構在中國內地仲裁可能面臨重重的法律障礙,具體涉及兩大關鍵的法律問題,即仲裁協議的效力和仲裁裁決的執行.
本文擬透過整理我國在過去二十多年間的司法實務與學理爭鳴,探究境外仲裁機構在中國內地仲裁所涉及的主體合法性協議有效性裁決國籍確定標準及裁決承認與執行等多個面向 的問題 ,討論如何應對境外仲裁機構在中國內地仲裁的法律困境, 並在 當前 仲裁法修訂的背景下評析最新的仲裁法修訂草案對解決這一困局的積極貢獻.
With a series of policy documents issued by the State Council in recent years to support foreign arbitration institutions to conduct arbitration in mainland China, the introduction of foreign arbitration institutions to Chinese market has come into the spotlight. However, due to the fundamental deficiencies of China's Arbitration Law, foreign arbitration institutions may face numerous legal obstacles when they conduct arbitration in Mainland China. Specifically, there are two key legal problems, namely the validity of the arbitration agreement and the enforcement of the arbitral award. By discussing the judicial practice and scholarly debates in China over the past twenty years, this article attempts to explore various aspects of the problem concerning the arbitration practice conducted by foreign arbitration institutions in mainland China, including the legality of the arbitration institution, the validity of the arbitration agreement, the criteria for determining the nationality of the arbitral award, and the recognition and enforcement of the award, etc. This article also intends to figure out the solutions to the legal dilemma faced by the foreign arbitration institutions in Mainland China, especially against the current backdrop of amending the PRC Arbitration Law.
With a series of policy documents issued by the State Council in recent years to support foreign arbitration institutions to conduct arbitration in mainland China, the introduction of foreign arbitration institutions to Chinese market has come into the spotlight. However, due to the fundamental deficiencies of China's Arbitration Law, foreign arbitration institutions may face numerous legal obstacles when they conduct arbitration in Mainland China. Specifically, there are two key legal problems, namely the validity of the arbitration agreement and the enforcement of the arbitral award. By discussing the judicial practice and scholarly debates in China over the past twenty years, this article attempts to explore various aspects of the problem concerning the arbitration practice conducted by foreign arbitration institutions in mainland China, including the legality of the arbitration institution, the validity of the arbitration agreement, the criteria for determining the nationality of the arbitral award, and the recognition and enforcement of the award, etc. This article also intends to figure out the solutions to the legal dilemma faced by the foreign arbitration institutions in Mainland China, especially against the current backdrop of amending the PRC Arbitration Law.
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