未竟的争鸣:被撤销的国际商事仲裁裁决的承认与执行

The Unending Debate: Recognition and Enforcement of Annulled International Commercial Arbitral Awards

在晚近三十年的国际商事仲裁实践中,被仲裁地撤销的仲裁裁决在他国获得承认与执行的案例屡次出现。以Hilmarton案、Putrabali案等为代表,法国法院的实践最具代表性。这种司法态度持续地引起了人们的争议。争议的焦点在于,承认与执行被撤销的裁决的自由裁量权是否存在?对此,从裁决撤销制度的意义以及《纽约公约》相关条款的解读出发,可得出截然相反的结论。结合《纽约公约》的立法宗旨以及当代国际仲裁的现状与发展趋势,对于这一问题,宜采取积极的现实主义态度:回答应为肯定,操作则当谨慎。目前中国法院尚未面临相关类似案件。中国加入《纽约公约》时即已表明,被执行人证明裁决存在已被仲裁地撤销的情形时,人民法院应当裁定驳回申请,拒绝承认及执行。中国未来有必要明确:仲裁地法院根据《联合国国际贸易法委员会国际商事仲裁示范法》所确立的国际通行标准撤销的仲裁裁决,中国法院才应当拒绝承认及执行,否则,中国法院将保留承认与执行被撤销的仲裁裁决的自由裁量权。

The past 30 years of international commercial arbitration practice has witnessed frequent recognition and enforcement of arbitral awards annulled at the seat of arbitration. The French court＇s approach as seen in the cases of Hilmarton and Putrabali,is most representative. This has continuously caused heated debates in the international arbitration community. The focus of the debates is whether the discretion exists for courts to recognize and enforce arbitral awards annulled at the seat. Opposite conclusions can be drawn depending on how the legislative purpose of the New York Convention is to be interpreted and how the present status and future trend of modern international arbitration is to be identified. It is suggested,however,that a positive and realistic approach be taken. That is,the answer is yes,but the discretion should be exercised prudently.Chinese courts have not yet been faced with such cases until now. China has made it clear upon ratifying the New York Convention that Chinese courts shall dismiss the application for recognition and enforcement of the award when the party against whom it is invoked furnishes proof that the award has been set aside at the seat. In the future,it is necessary for China to fine-tune its position to the effect that Chinese courts shall only refuse to recognize and enforce arbitral awards that have been set aside at the seat for the internationally accepted grounds contained in the UNCITRAL Model Law,otherwise,Chinese courts will reserve the right to utilize such discretion as to recognize and enforce awards annulled at the seat.