ู⣬ᵝᘧ➨㸰ྕ Ꮫㄽᩥཬࡧᑂᰝ⤖ᯝࡢせ᪨ ᶓᅜ❧Ꮫ Ặ ྡᙇ⯆೧ Ꮫ ࡢ ✀ 㢮༤ኈ㸦ᅜ㝿⤒῭ἲᏛ㸧 Ꮫ グ ␒ ྕᅜ♫༤⏥➨㸰㸲㸶ྕ Ꮫ ᤵ ᖺ ᭶ ᪥ᖹᡂ㸰㸴ᖺ㸷᭶㸰㸳᪥ Ꮫ ᤵ ࡢ ᰿ ᣐᏛつ๎㸦 ᖺ ᭶ ᪥ᩥ㒊┬௧➨ ྕ㸧➨㸲᮲➨㸯㡯ཬࡧ ᶓᅜ❧ᏛᏛつ๎➨㸳᮲➨㸯㡯 ◊✲⛉Ꮫᗓ࣭ᑓᨷྡᅜ㝿♫⛉Ꮫ◊✲⛉ ᅜ㝿⤒῭ἲᏛᑓᨷ Ꮫ ㄽ ᩥ 㢟 ┠&RPSDUDWLYH6WXG\RQ5HIXVDOVRIUHFRJQLWLRQDQG(QIRUFHPHQW RI,QWHUQDWLRQDO&RPPHUFLDO$UELWUDO$ZDUGV ,QFUHDVLQJ,PSRUWDQFHRI'RPHVWLF$UELWUDWLRQ5HODWHG/DZV ㄽ ᩥ ᑂ ᰝ ጤ ဨᰝᶓᅜ❧Ꮫ ᰿ᮏὒ୍ ᩍᤵ ᶓᅜ❧Ꮫすᕝె௦ ᩍᤵ ᶓᅜ❧Ꮫ Ⲩᮌ୍㑻 ᩍᤵ ᶓᅜ❧Ꮫ ᰗ ㉪⚽ ᩍᤵ ᶓᅜ❧Ꮫ 㧗ᶫᑑ୍ ᩍᤵ ㄽᩥࡢせ᪨ 1. Research Background and the Main Issue International commercial arbitration system is one of the efficiently and widely practiced alternative dispute resolutions for cross border commercial activities. Comparing to the traditional court litigation, arbitration system is recognized as a more favorable resolution for commercial disputes, which ensures arbitral awards to be recognized and executed easily. Recognition and enforcement of international commercial arbitral awards is the most significant step in international commercial arbitration system. Contemporary legal framework for international commercial arbitration is composed of several multilateral arbitration conventions and various domestic arbitration-related laws, which have greatly improved the possibility of execution of cross border commercial arbitral awards. Nevertheless, there are still some controversial barriers to smoothly recognition and enforcement of international commercial arbitral awards under this well established legal framework, which have been occurred in legal practice in different jurisdictions. In order to eliminate those obstacles, much research work has been done. In this dissertation, the first step is to review the development of international arbitration conventions during the past century, and try to pick out the most controversial barriers to contemporary international commercial arbitral awards. The second step specifically compares and discusses those barriers in several selected jurisdictions, analyzing the detailed reasons for refusals. The third step further discusses the contributions of the United Nations Commission on International Trade Law, which has drafted the Model Law on International Commercial Arbitration (UNCITRAL Model Law), and overviews the historical backgrounds of arbitration legislation in some selected States. Meanwhile, more attention pays to the growing importance of the Model Law as guidance for the legislation or perfection of different domestic arbitration-related laws. Then the final part makes practical and feasible suggestions about eliminating those most complicated barriers to recognition and enforcement of international commercial arbitral awards. The main issue of this dissertation is concentrated on the the argument of domestic arbitration-related laws, which have been recognized as the critical element causing refusals of international commercial arbitral awards during the past decades. Moreover, domestic arbitration-related laws are also significant for effectively preventing future rejection of international commercial arbitral awards. Therefore, the growing importance of various domestic arbitration-related laws, specifically, on the interpretation of the validity of arbitration agreements, the authorization of judicial interventions and the permission of invoking the public policy doctrine shall not be ignored. Under the contemporary situation, it first needs to focus on the relevant statutes provisions and judicial explanations of different domestic arbitration laws which have caused these existed controversial barriers. Then it is necessary to systematically interpret the domestic rulings together with these significant multilateral arbitration conventions. Finally, it is considered that amendment or perfection of different domestic arbitration-related laws, if necessary, under the guidance of the UNCITRAL Model Law, is a feasible and effective method for reducing or eliminating the existed barriers, and promoting future smoothly recognition and enforcement of international commercial arbitral awards in different jurisdictions. 2. Chapter I This chapter provides an overview of the negotiation of the most significant multilateral international arbitration conventions, which have gradually promoted smoother recognition and enforcement of international commercial arbitral awards during the past 20th century. Prior to those conventions, there was no compulsory obligation of recognition and enforcement of cross border commercial arbitration agreements and arbitral awards. After the Geneva Protocol on Arbitration Clauses was passed in 1923, arbitration agreement was first time recognized as legitimate through international treaty mechanism. However, arbitral awards based on these arbitration agreements could only be executed in the country of origin, but not exterritorial. Four years later, further progress was accomplished, because the 1927 Geneva Convention on Execution of Foreign Arbitral Awards was negotiated and signed. Nonetheless, with strict conditions and several limitations, there were still a lot of difficulties to recognize and enforce foreign arbitral awards according to the 1927 Geneva Convention. For instance, the limitation of application sphere, requiring contracting states which have signed both the Geneva Protocol and Geneva Convention, and the strict “double exequatur” requirements under the Geneva Convention were inserted in the Geneva Convention as the necessary condition for execution of cross border commercial arbitral awards. Since the middle 20th century, with rapid growth of global economy and commercial transactions, international commercial arbitration system has been greatly improved. In order to meet the practical needs of more liberal mechanism for recognizing and executing of arbitration agreements and foreign arbitral awards, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) was negotiated in 1958, which has put forward seven maximal grounds for the refusals of foreign arbitral awards. During the past decades, the New York Convention has become the most successful convention in private international law field. Nevertheless, some controversies are originated from the different interpretation of the relevant provisions of the Convention, such as different explanations on some core provisions--Article I (1), Article II, Article V and Article VII(1)--of the New York Convention. This approach has caused conflicts among jurisdictions on confirming the validity of arbitration agreements, authorizing appropriate judicial involvement and invoking public policy doctrine. These conflicts have subsequently brought barriers to recognition and enforcement of foreign arbitral awards. In order to reduce these controversies, some academic researchers and arbitral practitioners have argued on the issue that whether the New York Convention should be revised or not. No matter how difficult those problems are, it could not be denied that the New York Convention has greatly promoted the possibility of recognition and execution of foreign arbitral awards, which has substantially improved the basic legal framework by restricting the refusals of exterritorial execution of commercial arbitral awards. Following the New York Convention, some more-favorable regional or local arbitration conventions have been negotiated. Two of those regional conventions are the 1961 European Convention on International Commercial Arbitration and the 1975 Inter-American Convention on International Commercial Arbitration. The merits and more-favorable provisions of the 1961 European convention has been explained in detail, which has made a lot of improvements on the basis of the New York Convention, including the more liberal formal requirement of arbitration agreements, the unified grounds for setting aside of arbitral awards and the restricted application of Article V(1) (e) of the New York Convention. This Chapter forms the basis of the whole dissertation, which introduces the basic historical evolution of the international legal framework for cross border commercial arbitration system and concentrates on the gradually reduced barriers to recognition and enforcement of international commercial arbitral awards. However, it significantly points out those still existed barriers to recognition and enforcement of international commercial arbitral awards under the most influential New York Convention. 3. Chapter II Chapter II specifically analyzes the most frequently invoked barriers to recognition and enforcement of international commercial arbitral awards in several jurisdictions, including the invalidity of international commercial arbitration agreements, the excessive judicial interventions on international commercial arbitration system, and inappropriate invoking of the public policy doctrine of the relevant jurisdictions. The analysis and discussion combines with both theoretical arguments and cases study, particularly, referring to some influential cases on recognition and enforcement of international commercial arbitral awards reported by national courts of Japan, Germany, France, United States, United Kingdom, Singapore, People’s Republic of China and India. This chapter contains the following three parts: (1) The validity of international commercial arbitration agreements forms the foundation of international commercial arbitration system, which has been frequently challenged and would directly affect the recognizability and enforceability of international commercial arbitral awards. Referring to the specific problems, the conditions of formal validity and substantive validity of international commercial arbitration agreement are different in the selected jurisdictions, which have been analyzed in detail. Moreover, another necessary element for determining the validity of an arbitration agreement is the matter of consent issue. As a privately negotiated dispute resolution, arbitration procedure shall be organized according to a valid arbitration agreement, which is a special contract between the parties. Therefore, the mutual consent of the related parties for signing such an arbitration agreement is necessary. It will maintain the validity of arbitration agreement, and ensure the autonomous or compulsory fulfillment of the final arbitral award. Another controversial issue affecting the validity of arbitral clauses has been compared and discussed, that is, arbitral clause contained in the charter party or other documents has been combined into bill of lading, which has been challenged in recent legal practice of some jurisdictions. (2) Excessive judicial interventions by different national courts have caused barriers to the smooth execution of international commercial arbitral awards. In fact, national court s may involve in all of the stages of arbitral procedure, including, but not limited to, refusing to refer disputed parties to arbitration before the arbitral tribunal being established, or granting recourse of arbitral awards through appeal or nullification, or recognizing and enforcing the vacated arbitral awards, or explaining the execution of “non-domestic” arbitral awards, etc. According to the New York Convention, the criterion for determining the judicial involvement on international commercial arbitration agreement and arbitral award should be mainly regulated by domestic arbitration laws. Thus, excessive judicial interventions have sometimes occurred in some jurisdictions, according to their relevant effective laws and regulations. In this section, judicial interventions on referring to arbitration procedure and its exceptions, authorizing appeal of arbitral awards, granting nullification of arbitral awards, executing vacated arbitral awards and interpreting on the criteria of the non-domestic arbitral awards has been specifically discussed. How to maintain the appropriate judicial involvement is a difficult issue, particularly under various jurisdictions with different arbitration culture, legislation and practice. National courts which have exercised excessive judicial interventions will cause negative effect on international commercial arbitration agreements and arbitral awards, and may further depress the efficiency of international commercial arbitration system. (3) The controversy of Public policy doctrine has been argued for a long time in international commercial arbitration field. As a legitimate ground to refuse recognizing and enforcing international commercial arbitral awards, the public policy exception is vague and unclear. Its interpretation and application shall be separately decided by different jurisdictions according to their domestic arbitration laws. In addition, it is not required and expected to make an absolute uniform definition of the term of public policy under those multilateral conventions. So the public policy doctrine has been invoked not only for rejecting recognition and enforcement of arbitral awards, but also for setting aside of international commercial arbitral awards. Since countless elements may be interpreted as connecting with public policy issue, disputed parties who have failed in the arbitral proceedings are always preferred to plead setting aside of arbitral awards, or refusing execution of arbitral awards on the ground of violating the public policy doctrine. Although it has generally accepted to restrict the abuse of public policy, it is still one of the uncertain barriers to international commercial arbitral awards, when some competent authorities parochially interpret this term in proceedings of nullification or recognition and execution of international commercial arbitral awards. Therefore, some academic arguments and arbitration laws have divided the term into international public policy and domestic public policy, and have proposed that only the international public policy could be used to set aside or refuse recognition and enforcement of international commercial arbitral awards. 4. Chapter III This chapter concentrates on the background and the contributions of promulgating the UNCITRAL Model Law on International Commercial Arbitration. The effectiveness of contemporary domestic arbitration laws and regulations on the recognition and enforcement of international commercial arbitral awards has been largely improved through the guidance of the Model Law. Comparing to the New York Convention, it is clear that the Model has contained the core provision of the New York Convention on the one hand. While on the other hand, it has added some more liberal provisions which are not existed in the New York Convention, and will help reducing these controversially argued obstacles to recognition and enforcement of international commercial arbitral awards. Specifically, the contributions of the Model Law include the liberalization of the validity conditions of arbitration agreement, available of interim measures ordered by arbitral tribunals, unified grounds for setting aside of arbitral awards, more restriction on judicial interventions, and uniform application of the Model Law to all arbitral awards irrespective where they are rendered. Subsequently, a brief summary of the arbitration legislation history of the relevant eight countries tries to give a general explanation of the gradually changed barriers to recognition and enforcement of international commercial arbitral awards in those relevant jurisdictions. Particularly, referring to the historically development of the arbitration legislation, both prior to and after the publication of the Model Law, will help perceiving the significance of the Model Law on guiding the relative unification of domestic arbitration legislation. Germany, Japan, Singapore and India have incorporated the Model Law into their domestic arbitration-related laws. While other four selected countries, including the United Kingdom, the United States, France and the People’s Republic of China, have not directly incorporated the whole provisions of the Model Law. Nevertheless, their domestic arbitration legislation or amendment bills are to some extent affected by the Model Law. Further, there are still some defects of the Model Law which are expected future perfection. 5. Chapter IV The last chapter proposes some suggestions on eliminating those controversial barriers and promoting smoother recognition and enforcement of international commercial arbitral awards in different jurisdictions. Connecting with those specific barriers discussed previously, this chapter contains five sections, and each section will concentrate on a feasible proposal to eliminate the relevant obstacles. First, it is believed that systematically interpretation of the international arbitration conventions and domestic arbitration laws is critical, because the legal framework for the recognition and enforcement of international commercial arbitral awards is comprised of several influential multilateral arbitration conventions and various domestic arbitration-related laws. The incorrect interpretations of the core provisions of the New York Convention have caused conflicts and controversies among those contracting states. Moreover, with respect to those specifically discussed cases, it is clear that the occurrence of some more barriers are able to be assigned to the invoking and interpretations of the relevant domestic arbitration laws. It is expected that the outdated domestic arbitration laws shall be amended to be pro-arbitration, together with the appropriate practice of the more-favorable right provision of Article VII (1) of the New York Convention. Then this systematical legal framework of international commercial arbitration system will promote successful recognition and enforcement of international commercial arbitration agreements and arbitral awards. Nevertheless, the judicial interpretations route of the related more-favorable domestic laws should be relevantly unified for ensuring no new conflicts arose among those jurisdictions. Second, the sustainable research of Working Group II and Working Group III of the UNCITRAL is critical for further elimination of unnecessary refusals of international commercial arbitral awards. In regard to the significance of the Model Law, much importance should be attached to the guidance of the Model Law on perfection of domestic arbitration-related laws. As an example, the amendment of the Chinese arbitration law by incorporating the Model Law will be specifically analyzed here, which is a valid and effective way for reducing the existed barriers under the contemporary Chinese domestic legal framework of arbitration system. This approach will demonstrate the growing importance of domestic arbitration-related laws for reducing or eliminating the intractable obstacles to recognition and enforcement of international commercial arbitral awards. In addition, another new phenomenon of online arbitration has been practiced in some countries recently. Different from the traditional mechanism, the appropriateness and legitimacy of online commercial arbitration is full of doubt under the contemporary legal framework of arbitration system. It is still unclear that whether the online commercial arbitral awards are recognizable and enforceable or not. This part has given a brief introduction of the latest research work of Group III of the UNCITRAL on online dispute resolution, and emphasizes on the potential barriers to recognition and enforcement of online commercial arbitration awards. In order to maintain the effectiveness and realize the execution of cross-border online commercial arbitral awards, the perfection of the relevant contents of domestic arbitration laws is necessary. Third, further control of the excessive judicial interventions on international commercial arbitration system will maintain the validity and finality of international commercial awards, and enhance the possibility of final recognition and execution. National courts of the country where the places of arbitration are seated should respect the arbitration agreements and authorize less nullification of arbitral awards. While the competent authorities of other countries where recognition and enforcement of arbitral awards are relied upon should act according to the effective multilateral conventions and domestic arbitration laws therein, referring of the latest arbitration theories and practices, and then try to realize fewer refusals of international commercial arbitral awards. Fourth, the application of the public policy doctrine to set aside arbitral awards or to reject recognition and enforcement of arbitral awards should be restricted and relevantly unified to indicate only international public policy. Such an approach has been recognized by some domestic legislations and judicial practices, which should be exemplified and accepted by more jurisdictions in the future. Finally, the worldwide competition for the most-favorable arbitration centre is an efficient method for promoting the recognition and enforcement of international commercial arbitral awards in different jurisdictions. In this part, the successful experience of Singapore will be introduced and analyzed. It is believed that the success of Singapore to be a bright international arbitration centre is based on the continual perfection of domestic arbitration legislation on international commercial arbitration system, and gradually reduced judicial involvements of domestic courts. The amended arbitration-friendly legislation and judicial supports are especially coherent with the latest academic research and practical needs for promoting smoother recognition and enforcement of international commercial arbitration awards in Singapore. Comparatively, there are some defects on the domestic arbitration legislation or international commercial arbitration practice in China and Japan respectively. It is proposed that catching up with the globally competition to be the most-favorable arbitration centers will effectively improve the domestic laws and practice on international commercial arbitration system in China and Japan. Such an approach will effectually change the contemporary less arbitration-friendly situations in both countries, and ultimately eliminate the unnecessary refusals of the valid international commercial arbitral awards in the near future. 6. Conclusion Smooth recognition and enforcement of international commercial arbitral awards has endured a long history under the gradually promulgated multilateral international arbitration conventions and domestic arbitration-related laws. The most controversial barriers to recognition and enforcement of international commercial arbitral awards are concentrated on the challenge of the validity of arbitration agreements, the excessive judicial interventions on arbitration system, and the inappropriate application of public policy doctrine. According to these significant multilateral arbitration conventions, the interpretation of these controversies has been authorized to the competent authorities of different jurisdictions. Therefore, most of those obstacles are caused as a result of the application of outdated and imperfect domestic arbitration-related laws. In order to resolve those problems, more attention should be paid to the systematical interpretations of the multilateral international arbitration conventions and various continuous perfected domestic arbitration laws. It is generally proposed that those countries where international commercial arbitration legislation is unsatisfactory shall amend or perfect their domestic arbitration laws according to the UNCITRAL Model Law. Moreover, restriction of the excessive judicial interventions and amplified invoking of public policy exception is necessary. Furthermore, competing to be the most-favorable arbitration centre is an effective impetus for improving domestic arbitration laws and judicial supports on international commercial arbitration system, which will contribute to the effective reduction of barriers to recognition and enforcement of international commercial arbitral awards. ᑂᰝ⤖ᯝࡢせ᪨ 1䠊ㄽᩥ䛾ᴫせ ᮏㄽᩥ䛿䠈ᅜ㝿ၟ௰ุ᩿䛾ᢎㄆཬ䜃ᇳ⾜䛻㛵䛧䛶⌧⾜䛾せ䛺᮲⣙䛸せ䛺ᅜ䛾ᅜෆἲ䛾㛵ಀ 䜢እᅜ௰ุ᩿䛾ᢎㄆᇳ⾜䛸䛔䛖どⅬ䛛䜙ㄽ䛨䛯ㄽᩥ䛷䛒䜛䠊 ➨ 1 ❶䛿䛂ᅜቃ䜢㉺䛘䜛ၟ௰ุ᩿䛾ᢎㄆ䛸ᇳ⾜䜢ಁ㐍䛩䜛ከᩘᅜ㛫᮲⣙䛃䛸㢟䛩䜛䠊䛂௰᮲㡯䝙 㛵䝇䝹㆟ᐃ᭩(䝆䝳䝛䞊䝤㆟ᐃ᭩)䛃(1923 ᖺ)ཬ䜃䛂እᅜ௰ุ᩿䛾ᇳ⾜䛻㛵䛩䜛᮲⣙(䝆䝳䝛䞊䝤᮲⣙)䛃 (1927 ᖺ)䛿ᅜ㝿ၟ௰䛻㛵䛩䜛᭱ึ䛾᮲⣙䛸䛧䛶Ṕྐⓗព⩏䜢᭷䛩䜛䜒䛾䛾ከ䛟䛾Ⅼ䛷㝈⏺䛜䛒䛳䛯 䛣䛸䜢♧䛩䠊ᘬ䛝⥆䛔䛶䠈䛂እᅜ௰ุ᩿䛾ᢎㄆཬ䜃ᇳ⾜䛻㛵䛩䜛᮲⣙(䝙䝳䞊䞉䝶䞊䜽᮲⣙)(1958 ᖺ)䛜 149 䛛ᅜ(ᮏㄽᩥᇳ➹)䛾⥾⣙ᅜ䜢᭷䛩䜛䛻⮳䛳䛯⌮⏤䜢ヲ⣽䛻㏙䜉䜛䠊䛩䛺䜟䛱䠈ඛ⾜䛩䜛䝆䝳䝛䞊䝤 ㆟ᐃ᭩䞉᮲⣙䛸ẚ䜉䠈ᢎㄆᣄྰ⏤䛾ド᫂㈐௵䜢㌿䛧䛶㔜䛾ᇳ⾜ุỴ䛾ᚲせᛶ䜢᧔ᗫ䛧䛯䛣䛸䠈ཬ 䜃䠈ᢎㄆᇳ⾜䛾チྰ⏤䛾᭱㝈ᗘ䜢ᐃ䜑䛶䛔䜛䛸䛣䜝䛺䛹䛷䛒䜛䠊䛥䜙䛻䠈䝙䝳䞊䞉䝶䞊䜽᮲⣙䛾ᯟ䛾୰䛷 ⥾⤖䛥䜜䛯᮲⣙䛸䛧䛶䛴䛾ᆅᇦⓗ᮲⣙䠈䛩䛺䜟䛱䠈䛂ᅜ㝿ၟ௰䛻㛵䛩䜛Ḣᕞ᮲⣙䛃(1961 ᖺ)ཬ䜃 䛂ᅜ㝿ၟ௰䛻㛵䛩䜛⡿ᕞᅜ㛫᮲⣙(䝟䝘䝬᮲⣙)䛃(1975 ᖺ)䜢᳨ウ䛧䠈≉䛻Ḣᕞ᮲⣙䛜䝙䝳䞊䞉䝶䞊䜽 ᮲⣙䛾ḞⅬ䜢ᨵၿ䛧䛶䛔䜛䛣䛸䜢ホ౯䛩䜛(௰ྜព䛾᪉ᘧ䛻㛵䛩䜛つᐃ䛾ᩚഛ䠈௰ุ᩿䛜䛥䜜䛯ᅜ䛾 ุᡤ䛷ྲྀ䜚ᾘ䛥䜜䛯௰ุ᩿䛾ᢎㄆᇳ⾜䛺䛹)䠊 ➨ 2 ❶䛿䛂ಶ䚻䛾ἲᇦ䛻䛚䛡䜛ᅜ㝿ၟ௰ุ᩿䛾ᢎㄆᇳ⾜䛻ᑐ䛩䜛㞀ᐖ䛃䛸㢟䛩䜛䠊䛣䛾❶䛷䛿䠈௰ ྜព䛾᭷ຠᛶ(ᐇ㉁ⓗᡂ❧せ௳䠈᪉ᘧ)䠈௰ྍ⬟ᛶ䠈௰ྜព䛾ጉッᢠᘚ䛸䛧䛶䛾ព䠈௰ุ᩿䛻 ᑐ䛩䜛ุᡤ䜈䛾ୖッ䠈ุ᩿䛜䛥䜜䛯ᆅ䛾ุᡤ䛷ྲྀ䜚ᾘ䛥䜜䛯௰ุ᩿䛾ᢎㄆ⾜䛾ྍ⬟ᛶ䠈㠀ෆᅜ ⓗ௰ุ᩿䛾ព⩏䛺䛹ከ䛟䛾Ⅼ䛻㛵䛧䛶䠈䜰䝯䝸䜹ྜ⾗ᅜ䠈㐃ྜ⋤ᅜ䠈䝗䜲䝒䠈䝣䝷䞁䝇䠈᪥ᮏ䠈୰ᅜ䠈䝅䞁䜺 䝫䞊䝹䠈䜲䞁䝗䛾ᅜෆ௰ἲ䛸ุ䜢ᘬ⏝䛧䛴䛴䝙䝳䞊䞉䝶䞊䜽᮲⣙䛸䛾㛵ಀ䜢ㄽ䛨䛶䛔䜛䠊䝙䝳䞊䞉䝶䞊䜽᮲ ⣙䛜⤫୍䛧䛶䛔䜛䛾䛿ᴟ䜑䛶䜟䛪䛛䛺Ⅼ䛻㝈䜙䜜䛶䛔䜛䛯䜑䛻䠈䝙䝳䞊䞉䝶䞊䜽᮲⣙䛜つᐃ䛧䛶䛔䛺䛔Ⅼ䛻 䛴䛔䛶䛿ྛᅜ䛾ᅜෆἲ䛾ᐃ䜑䛜䛝䛟␗䛺䜛䛣䛸(௰ุ᩿䛻ᑐ䛩䜛ୖッ䛺䛹)䠈䝙䝳䞊䞉䝶䞊䜽᮲⣙䛾つᐃ 䛾䛧䛛䛯䛜䛒䛔䜎䛔䛺䛯䜑䛻ྛᅜ䛻䛚䛡䜛ᢅ䛔䛜␗䛺䜛⪅䛜ᑡ䛺䛟䛺䛔䛣䛸(ุ᩿䛜䛥䜜䛯ᆅ䛷ྲྀ䜚ᾘ䛥䜜䛯 ௰ุ᩿䛾ᢎㄆᇳ⾜)䜢ㄽ䛨䛶䛔䜛䠊 ➨ 3 ❶䛿䛂ᅜ㝿ၟ௰ุ᩿䛾ᣄྰ䛾ᢚไ䛻ᑐ䛩䜛 UNCITRAL 䝰䝕䝹ἲ䛻䜘䜛㈉⊩䛃䛸㢟䛩䜛䠊䝙䝳 䞊䞉䝶䞊䜽᮲⣙䛿እᅜ௰ุ᩿䛾ᢎㄆᇳ⾜䛾せ௳䜢ᐃ䜑䜛᮲⣙䛷䛒䜛䛯䜑䛻௰ᡭ⥆䛻㛵䛩䜛ከ䛟䛾ၥ 㢟䛿ྛᅜ䛾ᅜෆἲ䛻ጤ䛽䜙䜜䛶䛔䜛䠊䛭䛣䛷䠈ྛᅜ䛾ᅜෆ䛾௰ἲ䜢⤫୍䛩䜛ᚲせ䛜ឤ䛨䜙䜜䠈䝰䝕䝹ἲ 䛜᥇ᢥ䛥䜜䛯䠊ᮏ❶䛷䛿䠈䜎䛪䠈䝙䝳䞊䞉䝶䞊䜽᮲⣙䛸䝰䝕䝹ἲ䛾㛵ಀ䜢ㄽ䛨䛶䛔䜛䠊୧⪅䛿୍య䛸䛺䜚ᅜ㝿 ၟ௰䛾ᢎㄆᇳ⾜䜢ᐜ᫆䛻䛩䜛┠ⓗ䜢ᣢ䛱䛴䛴䜒䠈ᑐ㇟䛸䛩䜛㡯䛿䝰䝕䝹ἲ䛷䛿௰ᡭ⥆䛾㛤ጞ๓ 䛛䜙௰ุ᩿䛾ᢎㄆᇳ⾜䜎䛷௰ᡭ⥆䛾䛩䜉䛶䛾㡯䜢ᑐ㇟䛸䛧䛶䛔䜛䛣䛸䛺䛹䜢᳨ウ䛩䜛䠊䝰䝕䝹ἲ䛾 ≉Ⰽ䛸䛧䛶䠈௰ྜព䛾᪉ᘧ䛻㛵䛩䜛つᐃ䜢ᩚഛ䛧䛶⌧௦ⓗ㟂せ䛻䜒ᛂ䛘䜙䜜䜛䜘䛖䛻䛧䛯䛣䛸䠈௰ᡭ⥆ 䛻ᑐ䛩䜛ุᡤ䛾ධ䜢㝈ᐃ䛧䠈௰ุ᩿ྲྀᾘ⏤䜢㝈ᐃ䛧䛯䛣䛸䠈ᅜ㝿ၟ௰䛸ᅜෆၟ௰䛾༊ ู䜢ᗫṆ䛧䛯䛣䛸䜢ᣲ䛢䜛䠊 ᘬ䛝⥆䛔䛶䠈䝰䝕䝹ἲ䜢ᅜෆἲ䛻ྲྀ䜚ධ䜜䛶䛔䛺䛔ᅜ䛸䛧䛶䠈㐃ྜ⋤ᅜ䠈䜰䝯䝸䜹ྜ⾗ᅜ䠈䝣䝷䞁䝇䠈୰ᅜ 䛾௰ἲ䜢᳨ウ䛧䠈ḟ䛔䛷䠈䝰䝕䝹ἲ䜢ᅜෆἲ䛻ྲྀ䜚ධ䜜䛯ᅜ䛸䛧䛶䠈䝗䜲䝒䠈᪥ᮏ䠈䝅䞁䜺䝫䞊䝹䠈䜲䞁䝗 䛾ᅜෆἲ䜢᳨ウ䛧䛶䛔䜛䠊 ➨ 4 ❶䛿䛂ᅜ㝿ၟ௰ุ᩿䛾ᢎㄆᇳ⾜䛾ᣄྰ䛾᭦䛺䜛㝖ཤ䛾䛯䜑䛻᭷ຠ䛺᪉⟇䛃䛸㢟䛩䜛䠊ᅜෆ௰ ἲ䛾㔜せᛶ䜢ᙉㄪ䛩䜛୍᪉䠈UNCITRAL 䛻䜘䜛ᣢ⥆ⓗᣦᑟ䜢䜒ᙉㄪ䛩䜛䠊 2䠊ㄽᩥ䛾ホ౯ ᮏㄽᩥ䛿䠈ᅜ㝿ၟ௰䛻㛵䛩䜛ከᩘ䛾ἲ※(᮲⣙䠈ྛᅜ䛾ไᐃἲ䛸ุ)䜢ẚ㍑䛩䜛䛾䜏䛺䜙䛪䠈┦ 䛾΅䜒༑ศ䛻᳨ウ䛧䛶䛔䜛䠊≉䛻䠈ྛᅜ䛾ᅜෆἲ䛾㐪䛔䛜䛹䜣䛺⤖ᯝ䜢䜒䛯䜙䛧䛶䛔䜛䛛䛻䛴䛔䛶䜒῝ 䛟᳨ウ䛧䛶䛔䜛䠊᳨ウ䛾ᑐ㇟䛿䠈㛫ⓗ䛻䛿 20 ୡ⣖ึ㢌䛾䝆䝳䝛䞊䝤㆟ᐃ᭩䛛䜙 21 ୡ⣖䛾ᅜෆἲ䜎䛷ཬ 䜣䛷䛚䜚䠈✵㛫ⓗ䛻䛿䠈Ḣ⡿䛷䛿㝣ἲ⣔䛾ᅜ䛸ⱥ⡿ἲ⣔䛾ᅜ䠈䜰䝆䜰䛷䛿୰ᅜ䠈᪥ᮏ䠈䝅䞁䜺䝫䞊䝹䠈䜲 䞁䝗䛻䜎䛷ᗈ䛜䜚䜢ぢ䛫䛶䛔䜛䠊᳨ウ䛩䜛ἲ※䛿ไᐃἲ䞉䝰䝕䝹ἲ䛾䜏䛺䜙䛪ุ䛻䜒ཬ䜣䛷䛔䜛䠊᭱ᚋ 䛻䠈◊✲⠊ᅖ䛿ᅜ㝿ၟ௰䛾㛤ጞ䛛䜙⤊䜎䛷䛻ཬ䜣䛷䛔䜛䠊䛣䛾䜘䛖䛺ᗈ⠊ᅖ䛾ၥ㢟䜢እᅜ௰ุ ᩿䛾ᢎㄆᇳ⾜䛸䛔䛖୍䛴䛾どⅬ䛛䜙ㄽ䛨䛯Ⅼ䛿㧗䛟ホ౯䛷䛝䜛䠊 ௨ୖ䛾䛣䛸䛛䜙ᮏㄽᩥᑂᰝጤဨ୍ྠ䛿䠈ᮏ◊✲⛉䛾༤ኈྕᑂᰝᇶ‽ճ䛻↷䜙䛧䛶䠈ᙇ⯆೧Ặ䛾Ꮫㄳ ồㄽᩥ䛂Comparative Study on Refusals of Recognition and Enforcement of Commercial Ar bitral Awards: Increasing Importance of Domestic Arbitration-Related Laws㻌 (ᅜ㝿ၟ௰ ุ᩿䛾ᢎㄆཬ䜃ᇳ⾜チྰ䛻㛵䛩䜛ẚ㍑◊✲䠉ᅜෆ௰㛵㐃ἲ䛾㧗䜎䜛㔜せᛶ䜢୰ᚰ䛻)䛃䛜༤ኈ(ᅜ㝿 ⤒῭ἲᏛ)䛾Ꮫ䜢ᤵ䛩䜛䛻್䛩䜛䜒䛾䛸䛧䛶䠈ุ᩿䛩䜛䠊 ὀ ㄽᩥཬࡧᑂᰝ⤖ᯝࡢせ᪨ḍ㊊ࡀ⏕ࡌࡿሙྜࡣࠊྠḍࡢᵝᘧ‽ࡌ㠃ཪࡣู⣬ࡼࡿࡇࠋ
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