چکیده:
کمیسیون داوری تجاری و اقتصادی بینالمللی چین-سیتک از نهادهای داوری در چین است. سهولت و اطمینان از شناسایی و اجرای آرای داخلی و خارجی این نهاد اهمیت ویژهای دارد و موجب بسط و گسترش روابط تجاری بینالملل خواهد شد. سیتک مقرراتی را طبق اصول و قواعد نوین حاکم بر داوری پیشبینی کرده است. هرچند در مواردی از این اصول تخطی داشته است. در عرصة بینالمللی نیز شناسایی و اجرای آرای خارجی سیتک طبق قواعد کنوانسیون نیویورک ۱۹۵۸ صورت میگیرد. در این مقاله این موضوع که آرای داوری سیتک چگونه شناسایی و اجرا میشوند، بررسی میشود. به این منظور شناسایی و اجرای آرای سیتک از منظر مقررات چین و کنوانسیون نیویورک، اصول، موانع، نحوة شناسایی و اجرای آرای داوری داخلی و خارجی سیتک به روش توصیفی تجزیهوتحلیل شده، در نهایت مشخص میشود آرای داخلی و خارجی صادره از سیتک در دادگاه محل اجرا، قابلشناسایی و اجراست.
The China International Economic and Trade Arbitration Commission-
CIETAC is one of the successful and prominent arbitration institutions in
China, which many businessmen and investors from all over the world refer
to in order to resolve their disputes. Based on the UNCITRAL model law,
international arbitration rules and the new principles and rules governing
arbitration, this arbitration body has legislated its laws and amended them
repeatedly in this regard. The possibility of identifying and implementing the
arbitration decisions of an institution is one of the important factors in
referring people to that arbitration institution, because on the assumption of
issuing a just and fair decision, if it cannot be implemented, it will
practically make the arbitration useless. Since arbitration is a private dispute
resolution method, it has no coercive power to enforce its decisions.
Therefore, the intervention of the courts to assist in the implementation of
arbitration decisions is inevitable. But in this case it is necessary to create a
balance between the important principles of "recognition and mplementation
of arbitration decisions" and "issuance of fair and just decisions" as well as
"independence of arbitration from judicial authorities". It is obvious that the
laws that can establish this balance in the best way have been more
successful towards the goals of arbitration. In this article, it has been tried to
introduce the rules and procedure by using the descriptive and analytical
method of competent authorities in the implementation of internal and
external arbitration decisions of CIETAC. The ruling on the implementation
of CIETAC's arbitration decisions should be reviewed in these references.
According to Chinese laws, votes that do not have foreign elements or have
foreign elements but are implemented in China are considered domestic
votes and are implemented by Chinese people's courts. Chinese law
considers the recognition and enforcement of arbitral awards as the principle.
However, in the cases listed in the Civil Procedure Law of China, it allows
non-implementation of arbitration decisions. According to this law, there are
obstacles to the implementation of internal arbitration awards without an
external element and internal arbitration awards with an external element
that are implemented in China, there are differences in terms of the number
of non-enforcement cases, their subject matter, and the form and substance
of the issues. The implementation of the internal votes of CIETAC in these
two cases are accompanied by differences. CIETAC's foreign votes are votes
that have a foreign element and are enforced outside of China by foreign
courts. The implementation of CIETAC's arbitration awards outside of China
is first recognized by the courts of the place of implementation and then
implemented. Due to the importance of the implementation of this type of
votes, bilateral or multilateral international treaties have been created to
recognize foreign arbitral awards and their implementation. One of the most
important of them is the 1958 New York Convention, which China has
joined. This convention also recognizes the principle of recognition and
implementation of foreign arbitral awards. However, in the cases listed in
paragraph 5 of this convention, the courts implementing the arbitration
award are allowed to refuse to implement the arbitrator's award under certain
conditions. Obstacles to the implementation of CIETAC's internal and
external arbitration awards are different in terms of the number of cases,
their subject matter, the burden of proving the existence of obstacles, and the
form and substance of the implementation obstacles. The question that arises
is how to identify and implement CIETAC's arbitration awards. Is it possible
and what is the procedure of the courts inside and outside of China in this
regard? It seems that by establishing laws in accordance with the new
principles and rules governing arbitration and using China's accession to
international conventions, including the New York Convention of 1985, and
governing the principle of recognition and implementation of arbitral awards
and the independence of arbitration from judicial authorities and issuing fair
awards and Justly has facilitated the recognition and implementation of the
votes issued by this institution based on its regulations. Examining the rules
and procedures governing the implementation of CIETAC's internal and
external votes can be important from two perspectives: 1. The policy of
looking east in Iran requires identifying the potentials of the East in all
fields, including dispute resolution authorities and their procedures. They
should be used to grow and expand international business relations.
Considering the growing woodworking and economic relations between Iran
and China, the introduction of CIETAC as a reliable institution in the East
whose votes can be recognized and implemented inside and outside of China
can promote the development of international trade relations by promoting
arbitration between two countries. In addition to Iran's accession to the 1958
New York Convention, CIETAC votes can be recognized and implemented
in Iran. Therefore, Iranian businessmen and investors can refer to this
prestigious arbitration institution to resolve disputes arising from their
international business relations. 2. In addition, the experiences of this
successful arbitral institution can be used in legislations, amendments to
laws and also in the promotion of Iranian arbitral institutions.