外国仲裁裁决在我国承认与执行程序的重构

Reconstruct the Procedure of Recognition and Enforcement of Foreign Arbitral Award in China

《民事诉讼法》及最高人民法院出台的相关司法文件已初步形成我国审查外国仲裁裁决申请承认与执行案件的程序,但近年来的实践证实该制度存在不少缺陷,亟待重构。外国仲裁裁决申请承认与执行程序涉及到司法与仲裁、当事人权益保护、国际法与国内法等关系的博弈与权衡,应在统一性、协调性和全面性的思想指导下,坚持原有的立法模式,从仲裁裁决的国籍确认、执行程序中的保全、审查时限及上诉制度方面,分三个层级逐步予以完善。

Civil Procedure Law of PRC and the relevant Judicial Interpretations issued by the Supreme People’s court have preliminarily formed the procedure of reviewing the cases on applying for recognition and enforcement of Foreign Arbitral Awards in China,however,the Judicial practice in recent years confirms that the system aforesaid has many defects and needs to be reconstructed. The procedure of recognition and enforcement of Foreign Arbitral Award shall involve the competition and balance between judicial review and arbitration,the protection of the rights and interests of the parties,the relationships between international law and domestic law.Therefore,while reconstructing the Procedure of Recognition and Enforcement of Foreign Arbitral Award,we shall comply with the guidance of unity,coordination and comprehensiveness,and adhere to the original legislative model. At last,we should reconstruct the said procedure from three classes gradually,the recognition of the nationality of the arbitral award,the preservation of the execution procedure,the time limit for the examination and the procedure of appeal.