중국법원에서의 외국중재판정에 대한 승인과 집행 : 판례에 대한 평석을 중심으로

Currently, international arbitration has been becoming an effective method to resolve international disputes. The recognition and enforcement of the foreign arbitral awards have been guaranteed by the New York Convention which should be considered as the milestone of the resolution of international disputes. Consequently, the research on the application of the New York Convention in South Korea and China, which have already been member countries of the New York Convention, is not only valuable on academic, but also meaningful on the legal practice of the international transaction between South Korea and China. In this article, the actual application of the New York Convention in China will be explored and the position of Chinese courts will be explained by introducing several related cases in China. The main legal basis of the recognition and enforcement of foreign arbitral awards in China consists of Civil Procedure Law and the New York Convention which can be directly applied in china. Foreign Arbitral Awards under The New York Convention includes awards made in countries outside the territory of the State of enforcement and awards not considered by the State of enforcement as domestic arbitral awards, namely " non-domestic arbitral awards”. China declared reservation about two issues when it acceded the New York Convention, namely "reciprocity reservation" and "commercial reservation". The scope of the "commercial" has been defined by the Supreme Court of China with a judicial interpretation. Actually, there are no strong controversies related with reciprocity reservation and commercial reservation in practice. However, the disagreement usually rises in how to judge “foreign awards” and “non-domestic arbitral awards” in practice. On the former issue, the Chinese court has made a wrong judgment that the seat of the arbitration has been identified as the seat of the arbitration body. Although this wrong idea has been corrected to some extent, it is not clear, according to the current law in China, on how to determine the seat of the arbitration under the circumstance that the parties have no agreement on this issue. On the later issue, there is no consensus has been reached and the Chinese courts attempt not recognizing the arbitral awards made by the foreign arbitral organization but the seat of arbitration is in China. In terms of procedural matters on the recognition and enforcement of foreign arbitral awards, China's Supreme Court have made decisions on the submission of the related materials and the period of application of the enforcement of the arbitral awards. In these cases, it should be considered that the procedural matters in Chinese courts are relatively undemanding. In terms of grounds of refusal for recognition and enforcement, Chinese Supreme Court has made several judgments on the issues of the form of the arbitral agreement, proper notice, arbitrability and the violation of public policy. Regarding the form of the arbitral agreement, the Chinese Supreme Court adopt the “agreement in writing” regulation which stipulated in the New York Convention. In terms of the notice by email, the Chinese Supreme Court takes the criterion of the actual delivery. Regarding the arbitrability, there is a few of cases of the Chinese Supreme Court to refuse the enforcement of the foreign awards for reason of no arbitrability. On the issue of the violation of public policy, Chinese Supreme Court has ever made an affirmative decision on the ground that arbitral tribunal reheard issues which had been heard by the courts. However, the refusal of the enforcement of foreign arbitral awards on the ground of violation of public policy is not popular in China. Especially, in many cases, the violation of domestic compulsory provision has not been judged as the violation of the public policy. Undoubtedly, Chinese courts are willing to enforce the foreign arbitral awards as much as possible. Under this circumstance, it is certainly necessary to improve and perfect the legal system of the recognition and enforcement of the foreign arbitral awards.