International commercial arbitration froma comparative perspective: The enforcementof foreign awards in Turkey and China
Başlık çevirisi mevcut değil.
- Tez No: 724213
- Danışmanlar: PROF. DR. ZHANG LİYİNG
- Tez Türü: Yüksek Lisans
- Konular: Hukuk, Uluslararası Ticaret, Law, International Trade
- Anahtar Kelimeler: Belirtilmemiş.
- Yıl: 2017
- Dil: İngilizce
- Üniversite: China University of Political Science & Law
- Enstitü: Yurtdışı Enstitü
- Ana Bilim Dalı: Belirtilmemiş.
- Bilim Dalı: Belirtilmemiş.
- Sayfa Sayısı: 117
Özet
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Özet (Çeviri)
Examining different legal foundations of different countries is increasingly crucial in the trend toward globalization and essential in improving and maintaining communication among countries. This thesis attempts to meet this goal by presenting the international commercial arbitration rules of Turkey in comparison with the legal basis for international commercial arbitration in China. The research mainly adopts both black letter methodology and sociological methodology by referring to qualitative data based on the use of primary and secondary sources; interpreting cases on the basis that it forms a system of inter-related rules; as well as understanding how the legal proceedings impact the parties involved. Whereas the primary sources refer to the national and international regulations, and case law, the secondary sources include books, journals, articles, newspapers, study researches and online sources. The thesis is comprehensive in its sweep of the law and practice of arbitration in Turkey and China. The thesis is divided into three main chapters. Following Introduction, Chapter 1 gives an overview of the history of international commercial arbitration and the main sources of the present regulations in Turkey and China; available arbitration types under the Turkish and Chinese arbitration legislation; the approaches of domestic courts in international arbitration in Turkey and China. This chapter also touches upon the local arbitration institutions in both countries and compares the Arbitration Rules of ISTAC and CIETAC which became the prominent arbitration institutions among others. The intention of Chapter 2 is to identify the international arbitration procedure in Turkey in comparison with the Chinese legal system. It starts from explaining the formation, validity and legality of an arbitration agreement; arbitrability; drafting of an arbitration agreement; and the determination of the law applicable to an arbitration agreement. It next moves to examine the two important doctrines of arbitration, which are separability and competence-competence, in regard to the New York Convention, Model Law, UNCITRAL Arbitration Rules, ICC Arbitration Rules, TIAL Act No. 4686, Arbitration Law of the PRC, and as well as Arbitration Rules of ISTAC and CIETAC. Conclusively, these requirements and principles play an important role in drafting an arbitration agreement. Chapter 3 focuses on legislations governing the enforcement of foreign arbitral awards in Turkey and China, mainly in regard to the New York Convention and Model Law. This 3 chapter allows us to understand the differences and similarities between two countries' jurisdictions. Finally, both scholars in the Turkish and Chinese legal systems are confronted by similar criticisms as to the practice of international arbitration, which are the local court's intervention and the recognition of arbitral awards. The research concludes that strengthening existing laws at national and international levels; adopting international instruments such as confidentiality of proceedings, procedural flexibility and high rates of enforceability of foreign arbitral awards; and learning from the leading arbitration centers and closely modeling the best practice and at the same time, defining unique approaches that could be applicable to Turkey and China are crucial matters. This comparative review is intended to highlight issues in international commercial arbitration, therefore, domestic arbitration and/or investment arbitration are not being discussed in this academic essay. In addition, it shall focus on the influence of the UNCITRAL Model Law and New York Convention as opposed to the arbitration regulatory framework in Turkey and China, including the legislative framework and enforcement, and etc.
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