Rethinking the Non-enforcement System of Chinese Arbitration Awards

Currently, the system of non-enforcement of arbitral awards in China not only includes the function of rights relief of the respondent, but also contains the purpose of judicial supervision of arbitration enforcement by the state. However, in general, the counterplea cause raised by the respondent in the enforcement stage is not related to judicial supervision. Moreover, the establishment of the counterplea cause raised by the respondent will lead to the loss of the corresponding enforcement and RES judicata of the arbitral award. Furthermore, these kinds of misunderstanding and structural problems of the system inevitably lead to the conflict between judicial power and enforcement power. According to the legal principles of arbitration and enforcement, the enforcement power belongs to the national judicial organs. Arbitration, as a private award, must be enforceable and must be reviewed and confirmed by the judicial organs. Consequently, the legality review of arbitral awards should be handed over to the judicial organization, and at the same time, following the principle of limited review, independent and proper confirmation review procedure should be set up, that is, the arbitral award and the People's Court's ruling on arbitration together constitute the basis for enforcement. Drawing lessons from overseas experiences, the systematization of judicial review of arbitration enforcement should be constructed from a series of aspects, including the connection between revocation of arbitration and application review and enforcement, the way of judicial review of arbitration enforcement, and rejection of application and non-enforcement. Also, the legislative expression of arbitration legal system should be perfected to make it have laws to follow. On this basis, the three-dimensional system of non-enforcement of arbitral awards should be developed and applied in practice. This not only meets the objective needs of the state for judicial supervision of arbitration, but also further refines and implements the enforcement mechanism of separating judicial power from enforcement power.