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《纽约公约》适用于外国裁决和非本国裁决的承认与执行,而不适用于对本国裁决的承认与执行。在国际商事仲裁司法实践中,尽管地域标准已经成为各国普遍认可的区分本国裁决与外国裁决的标准,但是对于某一裁决是否属于本国裁决,归根结底仍由相关国家法院依据当地法律作出裁定。本文认为,外国裁决不等于外国仲裁机构裁决,它与非内国裁决也有区别。公约项下的非本国裁决所针对的是裁决地与裁决执行地同属一个国家的情况,它对于该裁决地和裁决执行地国而言,既不是本国裁决,也不是外国裁决。我国现行仲裁立法将外国裁决与外国仲裁机构裁决混为一谈,在涉及承认与执行国际仲裁裁决的司法实践中,同样存在将外国仲裁机构裁决、外国裁决与《纽约公约》项下的非本国裁决相提并论的情况。在对我国仲裁法进行修订的过程中,应当充分考虑将各国普遍认可的地域标准作为区分我国裁决与外国裁决的标准。
The New York Convention applies to the recognition and enforcement of foreign and non-domestic rulings and does not apply to the recognition and enforcement of domestic rulings. In the judicial practice of international commercial arbitration, although the geographical standard has become the standard generally accepted by all countries to distinguish between domestic and foreign rulings, whether or not a ruling belongs to a domestic ruling ultimately remains determined by the relevant state courts in accordance with local laws. This paper argues that a foreign ruling does not mean that a ruling of a foreign arbitrator is different from a non-domestic verdict. The non-domestic decisions under the Convention are directed at the situation where the award is in the same country as the enforcement of the award and it is neither a domestic award nor a foreign award for the country in which the award is located and the country in which the award is executed. In our country’s current arbitration legislation, foreign rulings are confused with rulings of foreign arbitration institutions. In the judicial practice involving the recognition and enforcement of international arbitral awards, there are also the similarities between judgments of foreign arbitration institutions and foreign rulings and non-domestic rulings under the New York Convention Happening. In the course of revising our Arbitration Law, we should give full consideration to the criteria of universality recognized by all countries as the criterion for differentiating between China’s ruling and foreign ruling.