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UM E-Theses Collection (澳門大學電子學位論文庫)

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Title

The enforceability of China-made ad hoc arbitration awards in China

English Abstract

Abstract The ad hoc arbitration is characterized by its flexibility and efficiency and becomes a prevalent method in international practice. Many international conventions or major developed countries have accepted the recognition and enforcement of foreign/domestic ad hoc arbitration awards. Instead, there is no authorized status or national arbitrational laws for the China-made ad hoc arbitration awards in China. Although China had signed the New York Convention, there is no embodiment for China-made ad hoc arbitration in present domestic legal system. That means, it has applied to different rules to the foreign ad hoc arbitration and the China-made ad hoc arbitration. Actually, the ad hoc arbitration has been rejected by Chinese present arbitration laws for a long time. The Chinese Arbitration Law (1995) requires that the parties shall appoint the accurate institution arbitration in their arbitration agreement or it shall be invalid. But in 2016, Chinese Supreme People's Court has issued a judicial document---the Opinions of the Supreme People's Court on Providing Judicial Guarantee for the Building of Pilot Free Trade Zones. It allows that the enterprises of Free Trade Zone (China) could arbitrate at a Chinese particular place (Mainland China), according to a particular rules, or by particular personnel. According to this document of Supreme People's Court, some of the regional arbitration commissions of Free Trade Zone (China) have established the rules of ad hoc arbitration system within their districts. In these new changes, there may be some legal problems in Chinese practice. Under this background, this thesis probes to the legal problems on the enforceability of these China-made ad hoc arbitration awards based on the present legal system in China, exploring the essential theory from Chinese present laws and related legal practice. It has made a comparative study to the judicial document of Supreme People's Court from the aspects of legal status and legal effect, and probed into the possible justification of Chinese present ad hoc arbitration rules. Moreover, there is more practical advancement on establishment of the ad hoc arbitration in China, which shows the certain possibility on enforceability of China-made ad hoc arbitration awards. Thereby, it would give some feasible suggestions in order to form China's own ad hoc arbitration system. As the commercial arbitration is progressing, the establishment of ad hoc arbitration not only endows significance for fair treatment between Chinese and foreign parties, but also promotes the order and efficiency to the trade disputes in globalization. Key words Ad hoc arbitration, institutional arbitration, reciprocal principle, New York Convention, legal effect, enforceability, Chinese Free Trade Zone

Issue date

2018.

Author

Yang, Bo Yuan

Faculty
Faculty of Law
Degree

LL.M.

Subject

Arbitration and award -- China

International commercial arbitration -- China

Supervisor

Mo Shijian

Files In This Item

Full-text (Internet)

Location
1/F Zone C
Library URL
991006756669706306