The enforcement of an arbitral award means that both parties to the dispute automatically perform the delivered legally effective arbitral award within the prescribed time limit. According to the laws of our country, if one party fails to perform the domestic arbitration award after it takes effect, the other party may apply to the people's court of the place where the person subjected to execution resides (or where the unit subjected to execution is located) or the people's court of the place where the property subjected to execution is located. If one party fails to perform within the time limit, the other party may apply to the people's court where the person subjected to execution is registered or the people's court where the property subjected to execution is located for compulsory execution. After the arbitration award of a foreign-related arbitration institution takes effect, if one party fails to perform it, the other party may apply to a court with jurisdiction in China or a foreign court for enforcement. The People's Bank of China, specialized banks and credit cooperatives shall, after receiving the notice of court's assistance in execution, detain or transfer the payable amount from the customer's account.
I. Conditions for the enforcement of arbitral awards
The execution of an arbitral award must meet the following conditions:
1. There must be an application from the party concerned.
When one party fails to perform the arbitral award, the other party (obligee) must apply to the people's court for enforcement, and the people's court can start the enforcement procedure. Whether to apply to the people's court for enforcement is the right of the parties, and the people's court has no right to take enforcement measures to enforce the arbitral award.
2. The parties must apply within the statutory time limit.
When applying for enforcement, the arbitration parties shall abide by the statutory time limit and exercise their rights in a timely manner. The people's court shall not accept an application for execution beyond the statutory time limit. As for the time limit for applying for execution, China's arbitration law stipulates that the parties may handle it in accordance with the relevant provisions of the Civil Procedure Law, that is, the time limit for applying for execution is two years, and the relevant provisions on suspension, interruption and extension shall apply. This period is calculated from the last day of the performance period stipulated in the legal documents; If the legal document stipulates that the performance shall be performed by stages, it shall be counted from the last day of each specified performance period.
3. The parties must apply to the people's court with jurisdiction.
When the parties apply for enforcement of the arbitral award, they must submit it to the people's court with jurisdiction. How to determine the jurisdiction of the people's court, according to the provisions of the Arbitration Law, should apply the relevant provisions of the Civil Procedure Law.
Other legal documents stipulated by the Civil Procedure Law to be executed by the people's court shall be executed by the people's court where the person subjected to execution has his domicile or property. That is, the parties shall apply to the people's court where the person subjected to execution has his domicile or property.
(2) Procedures for executing arbitral awards
1. Apply for execution
When the obligor fails to perform the arbitration award within the prescribed time limit, the obligee has the right to request the people's court to enforce it. When a party applies for enforcement, it shall submit an application to the people's court, which shall explain the basic situation of the other party, the matters and reasons for applying for enforcement, and submit an effective arbitration award or arbitration conciliation statement as the basis for enforcement to the court.
Step 2 perform
After the parties file an application for enforcement with a people's court with jurisdiction, the people's court that has been applied for shall implement it in accordance with the enforcement procedures stipulated in the Civil Procedure Law. The execution of the people's court shall be executed by the person subjected to execution.
(1) After receiving the application for execution, the person subjected to execution shall issue a notice of execution to the person subjected to execution, ordering him to perform the obligations specified in the arbitration award within a specified time limit. If the person subjected to execution fails to perform his obligations within the time limit, compulsory measures shall be taken.
(2) If the person subjected to execution fails to perform the obligations specified in the arbitration award according to the notice of execution, the people's court has the right to freeze and transfer the deposit of the person subjected to execution; Have the right to detain and extract the property that the person subjected to execution should perform his obligations; Have the right to force the person subjected to execution to move out of the house or withdraw from the land; Have the right to force the person subjected to execution to deliver the specified property or ticket; Have the right to force the person subjected to execution to perform a specific act.
(3) If the person subjected to execution fails to perform the obligation to pay money within the period specified in the arbitration award or mediation, he shall pay double the interest on the debt during the delayed performance; Failing to perform other obligations within the prescribed time limit, a late fee shall be paid. After the people's court has taken relevant compulsory measures, if the person subjected to execution is still unable to repay his debts, he shall continue to perform his obligations. That is, if the applicant finds that the person subjected to execution has other property, he may request the people's court for execution at any time. When the respondent is unable to pay off due debts due to serious losses, the applicant may request the people's court to declare the person subjected to execution bankrupt and pay off the debts.
(4) In the execution procedure, both parties can reach a settlement by themselves. If a settlement agreement is reached and the person subjected to execution fails to perform the settlement agreement, the people's court may resume the execution procedure upon the application of the person subjected to execution. If the person subjected to execution provides a guarantee to the people's court and the application for execution is approved, the people's court may decide the time limit for suspending execution. If the person subjected to execution fails to perform within the time limit, the people's court has the right to enforce the property guaranteed by the person subjected to execution or the property of the guarantor.
Second, the arbitral award will not be enforced.
(a) the reasons for not enforcing the arbitral award
After receiving the application for enforcement from the parties, the people's court shall execute the arbitration award in a timely manner. However, if the respondent provides evidence to prove that the arbitral award is legally unenforceable, it may request the people's court not to enforce it; After the people's court forms a collegial panel for examination and verification, it shall rule that it shall not be executed. According to the provisions of the Arbitration Law and the Civil Procedure Law, for domestic arbitration, the cases in which the arbitral award is not executed include:
1. The parties have no arbitration clause in the contract or have not reached a written arbitration agreement afterwards;
2. The matters decided do not fall within the scope of the arbitration agreement or the arbitration institution has no right to arbitrate;
3. The composition of the arbitration tribunal or the arbitration procedure violates legal procedures;
4. The main evidence for ascertaining the facts is insufficient;
5. The applicable law is really wrong;
6. The arbitrator asks for bribes, engages in malpractices for personal gain or perverts the law when arbitrating a case.
If the people's court, after examining and verifying the arbitral award by the collegial panel, confirms that there are any of the above circumstances, it shall rule that it shall not be executed and serve it on both parties and the Arbitration Commission. If the arbitral award is ruled by the people's court not to be executed according to law, the parties may not apply to the people's court for retrial. Both parties to the dispute may reach a new arbitration agreement, apply for arbitration according to the arbitration agreement, or bring a lawsuit to the people's court.
(two) the difference between not executing the arbitral award and revoking the arbitral award.
Non-execution of the arbitral award and revocation of the arbitral award are both manifestations of the people's court's judicial supervision over arbitration, and they are both denial of the arbitral award under certain circumstances that conform to the law. But there are also differences between the two, which are embodied in:
1. The parties making the request are different.
The party who has the right to apply for cancellation of the arbitration award may be any party in the arbitration case, whether it is the obligee or the obligor determined by the arbitration award; The party that has the right to propose not to enforce the arbitral award can only be the party that is applied for enforcement of the arbitral award.
2. The time limit for making a request is different.
If a party requests to cancel the arbitration award, it shall make a request to the people's court within 6 months from the date of receiving the arbitration award; The parties' application for non-enforcement of the arbitral award is after the other party's application for enforcement of the arbitral award and before the court makes a decision on whether to enforce the arbitral award.
3. Different competent courts
When a party applies for cancellation of an arbitral award, it shall apply to the intermediate people's court where the arbitration commission is located. If the party applies for non-enforcement of the arbitral award, it can only apply to the court where the person subjected to execution applies for enforcement.
4. Different legal reasons
Items (4) and (5) of the reasons for applying for cancellation of the arbitral award are: the evidence on which the award is based is forged, and the other party conceals evidence that can affect justice; Items (4) and (5) of the reasons for applying for non-enforcement of the arbitral award are: the main evidence for ascertaining the facts is insufficient, and the applicable law is indeed wrong. Moreover, the people's court can also revoke the arbitration award on the grounds that it violates the public interest. Different legal reasons show that when the people's court examines the revocation of an arbitral award, it focuses on the fact finding of the arbitral award; When reviewing the non-execution of an arbitral award, we should not only review the facts identified by the arbitral award, but also review the applicable laws of the arbitral award.
5. Different legal procedures
In the procedure of revoking the arbitral award, if the court thinks that it can be re-arbitrated by the arbitral tribunal, it shall notify the arbitral tribunal to re-arbitrate within a certain period of time; In the procedure of not executing the arbitral award, the court may not ask the arbitral tribunal to arbitrate again.
Arbitration, as a kind of civil adjudication system to solve disputes over property rights and interests, is increasingly welcomed by the parties to the dispute because of its flexible, fast and economical advantages. At the same time, in judicial practice, the problems caused by the parties applying to the court for enforcement of the arbitral award and the judicial supervision of the court on the arbitral award are also increasing. Among them, the difficulty of enforcement of arbitral awards has become a difficult point of concern for parties, courts and arbitration committees.
Legal objectivity:
Provisions of the People's Court on Several Issues Concerning Handling Cases of Enforcement of Arbitral Awards Article 20 If a party's application to the People's Court for revocation of an arbitral award is rejected, the People's Court will not support it. If a party's application to the people's court for non-execution is rejected, and it applies for cancellation of the arbitral award for the same reason, the people's court will not support it. During the review of the case of non-execution of the arbitral award, if the parties apply to the people's court with jurisdiction to cancel the arbitral award and it is accepted, the people's court shall decide to suspend the review of the application for non-execution; If the arbitral award is revoked or it is decided to arbitrate again, the people's court shall make a ruling to terminate the execution and terminate the examination of the application for non-execution; If the application for revocation of the arbitral award is rejected or the person subjected to execution withdraws the application for revocation of the arbitral award, the people's court shall resume the examination of the application for non-execution; If the person subjected to execution withdraws the application for revocation of the arbitral award, the people's court shall order to terminate the examination of the application for non-enforcement, except for the application for non-enforcement by the outsider.