论承认与执行国际投资仲裁裁决面临的挑战与出路——基于上诉机制改革的分析

Challenges and Countermeasures of the Recognition and Enforcement of Investment Arbitration Awards——An Analysis Based on Appellate Mechanism Reform

国际投资仲裁上诉机制的重大改革,势必会导致仲裁裁决在我国的承认与执行面临新的挑战。从仲裁形式来看,由于立法的缺失,现行临时仲裁规则存在审查权限不正当、审查标准不合理、裁决效力不明确、市场前景不明朗等缺陷,应当从仲裁规则和司法解释转向立法确认,在法源上解决在我国境内作出的临时投资仲裁裁决难以执行的问题。从司法审查来看,上诉改革后解纷体系将形成三重审查模式,可能出现效率过于低下的问题,可允许当事人协商排除司法审查。从国家豁免来看,应消除对管辖豁免与执行豁免在逻辑联系层面上的认识谬误,采区分说以完善国家豁免立法,为承认与执行仲裁裁决留下必要法律空间。从商事保留来看,为了使上诉机制所作裁决可以依据《纽约公约》申请承认与执行,应渐进式放松我国加入该公约时对投资争端适用的限制。

It is highly possible for the major reform regarding appellate mechanism in international investment arbitration leads to new challenges in the recognition and enforcement of the awards in China.From the perspective of arbitration form,due to the lack of legislation,defects in the domestic ad hoc arbitration rules,i.e.improper review conducted by the arbitration institution,unreasonable review standard,instabilityof the effect of awards,and unclear market prospect,make legislative confirmation of ad hoc investment arbitration indispensable for solving the problem of difficult enforcement of such awards rendered in China.From the perspective of the scope of review,the three-tier dispute settlement system may lead to unduly low efficiency.If the parties are allowed to exclude the judicial review,the efficiency of dispute resolution can be improved under the premise of maximum protection of substantive and procedural justice.From the perspective of state immunity,the misunderstanding of the logical connection between jurisdictional immunity and immunity from execution should be eliminated.Also,the legislation of state immunity should be improved based on the distinction between jurisdictional immunity andimmunity from execution.From the perspective of commercial reservation,in order to makeappellate awards recognized and enforced via the New York Convention,the restrictions on the application of investment disputes made during the accession of the Convention should be lifted gradually.