HOU Xianglei: The Value of New York Convention from a Chinese Judge's Perspective

发布时间：2018-09-13 15:39:09

 Keynote Speech on the 60th Anniversary of New York Convention and “One Belt and One Road” Conference

Mr. HOU Xianglei

Deputy Chief Judge of the Civil Adjudication Tribunal No.4 of

the Guangdong Higher People’s Court

Thank you, moderator. Good afternoon.Just now, Madam Gao has given us a very informative speech. Indeed, this convention has very huge impact on Chinese courts. Today I'd like to see this from the perspective of a judge with regards to the New York Convention's implication on Chinese courts.

It's been 30 years since China entered this convention, and the value is huge. Although the New York Convention was promulgated in 1958, we can tell that the New York Convention is very powerful in striking the right balance of the arbitration and the judiciary. It is of great significance for the Chinese courts. I believe that the value of the New York Convention to Chinese courts can be testified in the following three aspects.

Firstly, through the implementation of the convention, Chinese courts have become an important part for the international judicial assistance in the arena of arbitration. The New York Convention has played an important role to help China contribute to the world's arbitration arena. And China's practice has gained a widespread recognition around the globe. Chinese courts have become an important practitioner in international judicial assistance.

Secondly, the relevant content of the Convention has provided very good approaches to solve the difficult cases. The arbitration system in China was gradually completed since the Arbitration Law promulgated in 1994. But before that, there were many issues not supported by the legal systems. So, many Chinese courts will encounter many difficult cases. For example, when the parties didn't choose the applicable law of arbitration agreement, so how should we define the applicable laws? If we follow the Convention, under these circumstances, we need to apply the laws of the country where the award was made. So without the support of the laws, the arbitration issues are very difficult to deal with. So article V in the New York Convention has become an important reference for that. With the Convention, the judges can reach a consensus on that.

Another issue, for example, the Arrangement of the Supreme People's Court on Mutual Recognition and Enforcement of Arbitration Awards between the Mainland and Macao Special Administrative Region, we have different understanding and application of that arrangements. So we normally will seek convention as a reference tool. So convention has served as an important reference for Chinese courts. Sometimes such reference would even be beyond the arbitration scope. For example, the recognition and enforcement of the foreign court judgements, under what circumstances can we refuse the recognition and enforcement thereof? So the Convention obtains the value of analogy and reference on the recognition and enforcement of foreign court judgements.

And thirdly, the practice of the convention has been inspiring the standardisation of the domestic judicial review of arbitration in China. We apply different reviewing standard for domestic arbitration and foreign arbitration. For foreign arbitration, we use New York convention. For the practice of the New York Convention, it has deeply influenced the attitudes of the academics, scholars, and many practitioners. Many people will uphold that we should benchmark to the international standards. Although such views were not accepted by the legislature, it will exert important impact on the decisions of the court. So the judges have reached a consensus. Recently, the Supreme People's Court has required the review of domestic arbitration to be incorporated into a single department, which has fully testified that the Chinese courts are very cautious towards the standardisation and review of domestic arbitration. So we believe that the New York Convention has helped us further set up such rules and regulations in terms of the standardisation.

As I mentioned, besides the values of the New York Convention, I think the implementation of the New York Convention is very important for the work of Chinese courts in the future, and the implications are shown in the following three parts.

Firstly, we should stick to the fact that we should give a full play of arbitration in settling disputes.

The New York Convention is one of the international conventions that have the largest number of contracting countries, so in terms of the enforceability of the award, New York Convention has come as a better position. So after 60 years since its inception, New York Convention's practice has testified that arbitration has played an important and irreplaceable role in settling disputes. So for Chinese courts, we have too many cases for very few judges. In the Pearl River Delta, we have a lot of judges who are overloaded with their work. For the number of cases, to some extent, some of the courts have far exceeded the number of the cases that can be accepted by the judges. So we believe that the New York Convention has played an important hole to relieve the burden of the judges, because arbitration is a good way to solve dispute. If we support arbitration, we can support the work of Chinese court. Faced with such a huge number of cases, we believe that arbitration institutions are partners of judiciary. The Chinese courts do not only support arbitration but also rely on arbitration.

Secondly, the courts should play their role in supervision of arbitration. Article II in the New York Convention, in terms of the arbitration agreement, and in article V, it has defined the boundary for the court for the supervision of arbitration. So by those two articles, it has clarified what kind of role the court should play in supervising.

On the one hand, arbitration can't live without supervision. Without supervision, arbitration is not bounded. So when we were talking about supporting arbitration, it doesn't necessarily mean that we will call for arbitration in all cases. For example, concerning what we called “arbitration in advance” as well we “fraud in arbitration”, if a court will say "yes" to everything, then we believe that it will breach the very principle of arbitration. So supervision is another way to support arbitration, so as to provide judicial protection for arbitration.

On the other hand, supervision should be in line with the laws, so we should follow very closely to the negative list regulated by laws, and we should respect the laws of arbitration, to be more inclusive to the problems arising from arbitration practice.

Thirdly, while we are in line with the international standards, we should apply those rules and adapt those rules to the local practices. The New York Convention has said in its article I that the contracting countries may declare reservations. So the New York Convention has reached a consensus and standardisation on a very high level, but also adapt to the local practices. However, there are some imperfections that occurred during our practices, and most of those imperfections are shown or demonstrated by the localization issues. The six issues that we saw during the morning session mentioned by Dr. Liu Xiaochun are actually issues that we all have faced. We should be more targeted by using innovations to form a Chinese way of practice, especially when we are doing the process of One Belt One Road Initiative and the Great Bay of Guangdong, Hong Kong, and Macao.

As Madam Justice Gao says, we have created our own special way and our special system which is full of Chinese characteristics. With either the international standard or the local practices, we believe that we should all be focused on solving problems.

That's my presentation. Thank you.