Abstract
Nationality is a concept in public international law that refers to the legal identity of an individual as a member of a particular country to belong to that country. An international commercial arbitration award refers to an award made by an arbitral tribunal on an international commercial arbitration case. The arbitral tribunal here includes the arbitral tribunal under the permanent arbitration institution. In the practice of modern international commercial arbitral awards, the nationality of the arbitral award directly has a bearing on which country's court has the right to exercise the power to reverse a particular international award. However, whether the arbitral award made by the arbitral tribunal has the nationality of a certain country is still a controversy in both theoretical and practical circles. The traditional view is that an arbitral award shall have nationality, and this nationality marks the source of the legal effect of the award. Arbitration is not legally binding unless it is linked to the domestic law of a particular country. In the following, according to the legislation and practice of various countries and international conventions, the nationality classification standards for arbitral awards mainly include the following aspects.
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Notes
- 1.
Li Haopei, A Comparative Study of Nationality Issues, Bei**g: Commercial Press, (1979), p. 5.
- 2.
Zhao **owen, International Commercial Arbitration Law, Bei**g: People's University of China Press, (2004), p. 414.
- 3.
Zhou Zhansheng, International Law (first volume), Bei**g: Commercial Press, (1976), p. 248.
- 4.
Song Hang, Recognition and Enforcement of International Commercial Arbitral Awards, Bei**g: Law Press, (2000), p. 29.
- 5.
Gao Wei, “On the Nationality of Arbitral Awards: A Brief Discussion of the “Double Standard” in Chinese Judicial Practice,” Journal of Northwestern University (Philosophy and Social Science Edition), No. 5 (2011), p. 154.
- 6.
Song Lianbin & Dong Haizhou, “Study on the Nationality of ICC Arbitral Awards”, Journal of the University of Science and Technology Bei**g (Social Science Edition), No. 3 (2009), p. 52.
- 7.
Zhao **uwen, “Decisions of Foreign Arbitration Institutions Are Not Equivalent to Foreign Arbitration Awards,” Jurisprudence, No. 9 (2006), p. 127.
- 8.
Article 16, paragraph 2, of the Arbitration Law provides: “An arbitration agreement shall contain the following particulars: (i) an declaration of intention to apply for arbitration; (ii) matters for arbitration; (iii) and a designated arbitration commission.”
- 9.
Article 283 of Civil Procedure Law of the People’s Republic of China (2017) provides that: “If an award made by a foreign arbitration institution must be recognized and executed by a people's court of the People's Republic of China, the party concerned shall directly apply to the intermediate people's court of the place where the party subject to execution is domiciled or where his property is located. The people's court shall handle the matter pursuant to international treaties concluded or acceded to by the People's Republic of China or in accordance with the principle of reciprocity”.
- 10.
Zhao **uwen, “The Recognition and Enforcement of ICC Arbitration Court Awards in China from Relevant Cases”, Jurisprudence, No. 3 (2010), p. 70.
- 11.
Zhao **owen, “The Recognition and Enforcement of ICC Arbitration Court Awards in China from Relevant Cases”, Jurisprudence, No. 3 (2010), p. 77.
- 12.
Wan Xuezhong, “The ICC International Court of Arbitration Facing the World–Interview with Robert Briner, Chairman of the ICC International Court of Arbitration,” Legal Daily, (Aug. 8, 2001).
- 13.
Song Lianbin and Dong Haizhou, “Study on the Nationality of ICC Arbitral Awards”, Journal of the University of Science and Technology Bei**g (Social Science Edition), No. 3 (2009), p. 53.
- 14.
(2012) Min Si Ta Zi No. 2 Reply Letter of the Supreme Court of China of the People's Republic of China.
- 15.
Article 255 of the 2007 Civil Procedure Law stipulates: “Where disputes that arise from economic trade, transport or maritime activities involve foreign parties, if the parties have included an arbitration clause in their contract or subsequently reach a written arbitration agreement that provides that such disputes shall be submitted for arbitration to an arbitration institution of the People’s Republic of China for foreign-related disputes or to another arbitration institution, no party may institute an action in a people's court”.
- 16.
Article 128, Paragraph 2, of the Contract Law provides that “ Parties to a foreign-related contract may apply to a Chinese arbitration institution or another arbitration institution for arbitration in accordance with the arbitration agreement”.
- 17.
Zhao **uwen, “The Recognition and Enforcement of ICC Arbitration Court Awards in China from Relevant Cases”, Jurisprudence, no. 3 (2010), p. 77.
- 18.
Song Lianbin & Dong Haizhou, “Study on the Nationality of ICC Arbitral Awards—starting with a reply letter from the Supreme Court of China”, Journal of the University of Science and Technology Bei**g (Social Science Edition), no. 3 (2009), p. 52.
- 19.
Compilation of the Essence of Arbitration Law Judgments, 1st ed., Arbitration Association of the Republic of China, (Nov. 2006), p. 294.
- 20.
The Notice states that if a party applies to the Mainland court for enforcement of an interim arbitration award made in Hong Kong Special Administrative Region, or an arbitration award made in Hong Kong Special Administrative Region by foreign arbitral institution such as the Court of Arbitration of the International Chamber of Commerce (ICC), the Mainland court shall examine the application in accordance with the Arbitration Arrangement between H.K. and Mainland, and the arbitration award may be enforced in the Mainland if none of the circumstances set out in article 7 of Arrangement exists.
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Song, J., Cheng, B. (2024). Nationality of International Commercial Arbitration Awards. In: Foreign-Related Commercial Disputes Resolution in China. Springer, Singapore. https://doi.org/10.1007/978-981-99-9081-8_12
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