国际商会仲裁裁决国籍研究——从最高人民法院的一份复函谈起

Research upon Nationality of ICC Awards

国际商事仲裁裁决国籍的界定标准主要有两种:仲裁程序所适用法律标准和裁决作出地标准。后者为国际认可的主流标准。《承认及执行外国仲裁裁决公约》第1条除规定了裁决作出地标准外,还确立了"非内国裁决"标准。我国立法中所规定的标准是仲裁机构所在地,与国际商事仲裁一般理论与实践不符,导致外国仲裁机构在我国进行仲裁存在障碍。只有将此类裁决识别为"非国内仲裁裁决",法院才能寻求承认和执行的依据。

Generally, There are two ways to determine the nationality of an international arbitral award： les loci arbitri and the law under which the award was made. The dominance of the notion of nationality of awards based on the place of the arbitration has been confirmed and bolstered by its adoption in the New York Convention. In addition, arbitral awards not considered as domestic ones in the state where their recognition and enforcement are sought could also be applied to the Convention. A legal hindrance will occur when a foreign arbitration institution initiates arbitration in China, because the doctrine of place of the arbitration institution is adopted in China＇s legislative provisions, which doesn＇t coincide with prevailing theory and practices of international arbitration. Only by considering these awards as ones which defined by New York Convention last paragraph of Articlel, can Chinese courts find the gist of recognition and enforcement.