论涉外仲裁撤裁依据的竞合适用及其厘正——以仲裁协议为中心的实证考察

An Approaching to Addressing the Overlapping Applications of the Legal Provisions Concerning with Annulment of Foreign-related Arbitral Award——An Empirical Study Focused on Arbitration Agreement

仲裁协议系仲裁之根基,我国《民事诉讼法》第274条针对涉外仲裁裁决分两款共列示的五类撤裁依据直接或间接地与其相关,但彼此在适用上形成排斥而非兼容关系。此类依据之间的相关性导致了司法审查实践中撤裁依据的竞合适用;此类依据之间的排斥性又决定了此种竞合适用的不当或违法性。对样本案例的实证考察显示,以仲裁协议为中心的撤裁依据具有内部与外部、直接与间接结合而成的两大类型、三种形态的竞合适用。应区分仲裁协议的事实性与法律性存在,采取证据证明与选法调整的司法审查方式,厘正撤裁依据内部竞合适用问题;并根据仲裁协议之有无,以及仲裁裁决事项缺乏仲裁协议支持的范围程度,厘正撤裁依据外部竞合适用的问题。对涉外仲裁裁决的撤裁审查是展示中国涉外司法形象和友好仲裁环境的重要观测点,应建立章法严谨的厘正方法论,明晰各撤裁依据之间的适用边界与秩序。

The arbitration agreement is the foundation of arbitration. The five provisions listed in two paragraphs in Article 274 of the Civil Procedure Law of China are directly or indirectly related to the arbitration agreement,but they form a relationship of exclusion rather than compatibility in application. The correlation between these kinds of basis leads to the coincidence of application in the practice of judicial review,and the exclusivity determines the improper or illegal nature of such coincidence. The empirical investigation of the sample cases shows that the arbitration-agreement-centered basis of withdrawal has two types,which is internal and external,direct and indirect combination,and three forms of coincidence of application. We should distinguish the factual and legal existence of arbitration agreement,and adopt the judicial review method of evidence proof and selection of law adjustment to clarify the internal coincidence of application relating to the basis of withdrawing award. In addition,the external coincidence of application for the basis of withdrawal shall be clarified according to the existence of arbitration agreement and the extent to which the matters awarded by arbitration are not supported by arbitration agreement. The review of the withdrawal of foreign-related arbitral awards is an important observation point to display the image of China ’s foreign-related judicial system and the friendly arbitration environment. It is necessary to establish a rigorous methodology to clarify the application boundary and order of the various bases for annulment of arbitral awards.