외국중재기관이 중국을 중재지로 하여 내린 중재판정에 대한 중국 법원의 국적 결정기준에 관한 연구

A Study on the Nationality Determination Criteria of Chinese Courts for Arbitral Awards Made by Foreign Arbitration Institutions in China as the Place of Arbitration

Chinese law does not directly stipulate the criteria for determining the nationality of arbitral awards, and the Civil Procedure Law stipulates that arbitral awards are divided into domestic arbitral awards and foreign arbitral awards based on the location of the arbitration institution managing the arbitration cases. This indirectly classifies the nationality of the arbitral award based on the location of the arbitral institution. However, with regard to the nationality of eight arbitral awards in this paper made in China by the foreign arbitration institutions, the Chinese courts determined the nationality by arbitrarily selecting the criteria for the location of the arbitration institution and the criteria for the place of arbitration, except for arbitral awards made in Hong Kong. China’s unclear attitude toward the criteria for determining the nationality of arbitral award has resulted not only obscures the country that can exercise the right to revoke arbitral award, but also obscures the laws and regulations applied to the approval and execution of arbitral awards. In other words, since the right to revoke the arbitral awards resides with the country of nationality of the awards, such an ambiguous attitude in China prevents the parties from responding to the cancellation lawsuit by predicting the nationality of the arbitral awards in advance. Furthermore, since China made a declaration of reciprocity reservations while joining the New York Convention, in cases where the criteria for location of the arbitral institution is applied, if the arbitration institution belongs to a contracting state, the it must apply the New York Convention to approve and execute arbitration decisions, but if it is not a contracting state, it must be approved and executed by mutual arbitration agreements or reciprocity principles. These results can lead to different results in approval and execution of the same arbitral awards depending on how the nationality is determined.