论《纽约公约》中仲裁裁决的国籍问题

On the Nationality Issue in the Arbitral Awards of the New York Convention

国际商事仲裁裁决国籍概念的提出是以承认仲裁的地域性为基础的。《纽约公约》提供了两种确定国籍的方法———裁决做出地标准和程序法律适用标准。虽然程序法律适用标准在理论上更为合理,但终因与实践的脱节而逐渐被各国所抛弃,裁决做出地标准成为了主流标准。《纽约公约》不仅将裁决的国籍作为承认与执行的前提,也将其作为撤销权行使的依据,而展望国际商事仲裁制度的未来发展,裁决国籍的功能定位或将只适用于撤销领域,对于裁决的承认与执行有采取国际主义的趋势。当前,我国应通过立法的形式明确裁决国籍的功能定位及其确定标准。

The nationality of international commercial arbitral award is based on the fact that the arbitration is local.The ＂New York Convention＂ provides two methods to determine the nationality——the criteria of the country in which,and under the law of which,that award was made.Although the criterion of the country under the law of which that award was made is more reasonable in theory,it was gradually abandoned by all countries because of being out of touch with the practice.The criterion of the country in which that award was made becomes a mainstream one.In the ＂New York Convention＂,the nationality of award is not only the premise of recognition and enforcement,but also the basis for setting aside the award.While the outlook for the future development of international commercial arbitration system,the action of the nationality of award is only to be the basis for setting aside the award,and there will be an international trend in recognition and enforcement of the award.At present,China should decide the action and the criterion of the nationality of award.