已撤销的商事仲裁裁决域外“复活”问题探究

A Probe into the “Resurrection” of Cancelled Commercial Arbitration Awards

根据传统仲裁理论以及国际主流观点,仲裁裁决一经仲裁地法院撤销即已宣告该裁决“死亡”,因而也无法获得执行地国法院的承认和执行。但是随着全球化的纵深发展,衍生出了一系列国际商事仲裁的新理念、新理论和新动态,如意思自治在国际私法领域的扩张及国际商事仲裁裁决理论的更新等,进而导致已被撤销的仲裁裁决重获新生。但是由于该现象依然处于缓慢演进状态且各国国情差异较大,故而在“复活”规则方面缺乏统一的适用标准,致使现行的国际商事仲裁执行秩序的稳定性和一致性受到干扰。针对此问题,本文在分析已被撤销的仲裁裁决“复活”法律依据的基础上,从国际法层面和国内法层面提出相应的完善规则。

According to the traditional arbitration theory and the international mainstream view, once the ar-bitration award is revoked by the court of the place of arbitration, the award is declared “dead” and therefore cannot be recognized and enforced by the court of the country where the arbitration is executed. However, with the deepening development of globalization, a series of new ideas, new theories and new trends of international commercial arbitration have been derived, such as the expansion of autonomy of will in the field of private international law and the update of the arbitra-tion theory of international commercial arbitration, which leads to the rebirth of the arbitration awards that have been cancelled. However, because the phenomenon is still in a slow evolution state and the national conditions of different countries are large, there is a lack of uniform applica-ble standards in the “resurrection” rule, which interferes with the stability and consistency of the current international commercial arbitration execution order. In view of this problem, this paper, based on the analysis of the legal basis of the “resurrection” of the cancelled arbitral award, puts forward the corresponding perfect rules from the international law and domestic law.