Recognition and Enforcement of Foreign Arbitral Awards in the Republic of China.

Abstract

This thesis not only seeks to demonstrate the requirements of and
procedures for recognition and enforcement of foreign arbitral awards in the
Republic of China (ROC), but also explores whether ROC’s legislation and
practices regarding recognition and enforcement of foreign arbitral awards
comply with international ‘best practice’ standards as contained in the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards
(New York Convention) and the UNCITRAL Model Law on International
Commercial Arbitration (UNCITRAL Model Law). Even though ROC’s
former legislation and practices did not conform to these standards, the present
legislation and practices do comply with the New York Convention and the
UNCITRAL Model Law.
Although ROC and the People’s Republic of China (PRC) both insist on a
‘one China’ policy and each claims that it represents the whole of China, each
has its own legal system. Nonetheless, ROC adopted the ‘regional conflict of
laws’ theory based on the concept of ‘one country, two regions’ to deal with
cases relating to recognition and enforcement arbitral awards rendered in PRC.
In the context of that theory, this thesis explores the requirements of and
procedures for recognition and enforcement of PRC arbitral awards in ROC, and
whether there are any deficiencies in this regard. The thesis concludes that the
ROC legislation and practices regarding recognition and enforcement of PRC
arbitral awards in ROC are consistent with the New York Convention and the
UNCITRAL Model Law.
The government of PRC resumed the exercise of sovereignty over Hong
Kong and Macao from 1 July 1997 and 20 December 1999 respectively.
However, PRC adopted the principle of ‘one country, two systems’. PRC
authorizes the Hong Kong Special Administrative Region (Hong Kong SAR) and
the Macao Special Administrative Region (Macao SAR) to exercise a high
degree of autonomy and to enjoy executive, legislative and independent judicial,
including that of final adjudication. Thus, the ROC legislation deems that
Hong Kong and Macao arbitral awards are foreign arbitral awards in ROC. So,
the legislation and practices regarding recognition and enforcement of Hong
Kong arbitral awards and Macao arbitral awards also are in conformity with the
New York Convention and the UNCITRAL Model Law.
Moreover, the legislation and practices regarding recognition and
enforcement of foreign, PRC, Hong Kong, and Macao arbitral awards go further
than international standards set out by the New York Convention and the
UNCITRAL Model Law. Applying for recognition or enforcement of a foreign,
PRC, Hong Kong, or Macao arbitral award, an original arbitration agreement or
an original arbitral award can be substituted by an electronic format, which was
made originally and can show the whole text as well as can be downloaded for
examination. Furthermore, the courts of ROC construe the limitations
regarding recognition or enforcement foreign, PRC, Hong Kong, or Macao
arbitral awards narrowly. In addition, even though the ROC legislation
regarding recognition and enforcement of foreign, Hong Kong, and Macao
arbitral awards adopts the principle of reciprocity, the ROC Courts adopt the
notion of comity.
The thesis clarifies recognition and enforcement of PRC arbitral awards in
Hong Kong, and recognition and enforcement of Hong Kong arbitral awards in
PRC as well. Hong Kong arbitral awards are enforceable in PRC, and PRC
arbitral awards also are enforceable in Hong Kong in accordance with the
Arrangement Concerning Mutual Enforcement of Arbitral Awards Between
Mainland and the Hong Kong SAR 2000 (PRC) and the Arbitration (Amendment)
Ordinance 2000 (Hong Kong SAR) respectively based on the principle of ‘one
country, two systems’. Both the provisions of the Arrangement Concerning
Mutual Enforcement of Arbitral Awards Between Mainland and the Hong Kong
SAR 2000 (PRC) and the Arbitration (Amendment) Ordinance 2000 (Hong Kong
SAR) comply with the international standards set out in the New York
Convention and the UNCITRAL Model Law

Date of Award	5 Jun 2004
Original language	English
Supervisor	Mary Hiscock (Supervisor)