TwoThe arbitration tribunal, orThe arbitrator has power to expand the application of the principle of punitive arbitral award

Dawn company and Lilly joint venture contract dispute case in the course of arbitration, the arbitration tribunal according to China laws that Lilly default, double the return of award100000The dollar investment in equipment purchase.0517In American Award for recognition and enforcement process, Lilly presented the deposit system and America law, double the return of deposit is punitive award, the arbitration tribunal shall not have the right to make a punitive arbitral awards, recognition and enforcement of punitive arbitral awards American violation of public order, asking the court to refuse recognition and enforcement0517Award. Lilly's defense the arbitration institutions of civil nature or as an individual in the society the arbitrators shall have no power to make punitive arbitral award such a legal problem.

Admit punitive arbitral award and execution in the America has formed the legal system of our country, and rarely used the concept of punitive arbitral awards, investigate its reason, first is the legal system between China and America are different, some of the legal system of our country American is not, in the same way, some of the legal system of our country is in the countries of Anglo American law system have not the system of punitive damages, that is soSecondlyLegal culture,Different legal concepts, legal tradition, some punitive nature of the legal system in our country we do not refer to the system of punitive damages, and the punitive compensation law system in countries of Anglo American law system is identified as the system of punitive damages, punitive damages according to law ruling was identified as punitive arbitral awards. In this case the deposit system as an example, the deposit system is a legal system generally adopted by countries of continental law system and Anglo American law system countries, no deposit system, legal provisions American also no deposit system; our theory that the deposit is a guarantee of performing contract, deposit penalties not punitive compensation rules, and America court that the deposit is not a performance guarantee, belonging to the scope of punitive damages; punitive damages in China is legal,1993Years"Consumer protection law," the people's Republic of China No.49Article,2003"The Supreme People's Court on the law applicable to a number of commercial housing sale contract dispute cases the interpretation of" the8Article,1999Years""Contract law of the people's Republic of China No.113Article2Paragraph a fraud on the double back is the provisions of punitive damages, the scope of application of punitive damages is only the field of contract,And the provisions of punitive compensation scope of Anglo American law system countries than China's much broader, contract, tort, antitrust and other fields for; our limits on punitive damages in the amount of two times the amount of compensation, general contract fraud amount, USA thinkPunitive damages has the function of preventing illegal actsThe amount of punitive compensation does not explicitly restrictive provisions, the judge according to the specific circumstances of discretion case. In recent years, although there are limitations America punitive damages for practice, courts have limited the punitive compensation amount, but generally speaking, the punitive damages is still high, the practice of the illegal act impose high punitive damages case be too numerous to enumerate. For example,In theIn the case of Anderson v. General Motors corp.,USACalifornia court made a huge punitive damage awards for general motors.1993Years,AndersonDriving American Mrs.GM a Chevrolet car occurs during exercise"Rear end collision"Traffic accidents, because the car tank design at the back of the car,Automobile collision damage caused by oil tank, oil tank leakage fire explosionMrs. Anderson, and take the car4Children,1A friendSevere burnOne6Old girls do70Operation, the girl's sister60Secondary operation. Mrs. Anderson to AmericanCalifornia the court proceedings, request automaker General Motors Corporation compensation. The victim's lawyer told the court that provide evidence that, GM's board of directors has been made Chevrolet car tank design is not reasonable, too close to the rear bumper and risk.1973Years, an engineer GM proposed a "value analysis report", said the cause legal disputes death within the average cost per vehicle2·4The dollar, and solve the problem of oil tank design of average cost per car8·59The dollar. GM already know the defective automobile design, but in order to profit, a desire to save money without a modified car design in time, to recall the defective cars, even place the tragedy.1999Years7Month, the California courtJuryTo make a judgment on Anderson v. General Motors General, ordered GM to2Women and4A child compensation49·07Billion dollars. The huge compensation includes two parts, compensatory damages1．07Billion, punitive damages48Billion, a record for punitive damages.The jury found theThe reason is that the problems of GM, but in order to profit but not modify, profits on the public security.[3]

The concept of punitive arbitral award is made of punitive damages evolved.USAThe system of punitive damagesIn the1784Years ofGenay v.Norris The establishment of a case.[4]American is a case law country, but in the establishment and perfection of the system of punitive damages in the federal legislature still showed great enthusiasm, in the"Sherman act","Clayton law", "the Fair Credit Reporting Act", "fraud and Corrupt Organizations Act" (i.e.RICOAct), "The federal consumer credit protection act "," occupation safety and health law "etc.The federal statute law in somePunitive damages, the formation of both statute law and case law pattern.American is a multiple jurisdictions federal state, federal and state owned own legal system, in USA50States,46States that the system of punitive damages, Michigan, Nebraska, Singh Hampshire, Washington4States do not recognize the punitive compensation system.

Open the American punitive damages system origin and development history, we can see, the punitive damages system has such a characteristic: the implementation of punitive damages by the court on behalf of the state punitive damages judgment, by judge made law on behalf of the state, the system of punitive damages reflects the state of the judicial power, the state responsibility as evil.20In the early 2000s, cut a striking figure arbitration this folk dispute resolution,20The middle of the century, arbitration A new force suddenly rises., rapid development, play an important role in the settlement of international civil and commercial disputes. No matter how the development of arbitration, arbitration and judicial exists essentially different. The arbitration organization is a non-governmental organizations, social individual arbitrators, arbitration of international commercial disputes arbitration institutions to provide services for the society, and the parties authorized as the premise, the court and the national force in cutting international commercial disputes are different in nature.20Century80Before the 1990s,Punitive damages the penalty punishment power can only be exercised by the color of the court on behalf of the state, only by the judge to make specific penalties, arbitration institution as social organizations,The arbitrator as a social individual, not on social organization or other social individuals making punitive arbitral awards. The arbitrator shall not enjoy the punitive arbitral power at20Century80Before the 1980s was considered as unalterable principles, is not to be displayed in the form of text customary rules. To manifest themselves in practice forms of the arbitration tribunal or the arbitrator arbitration rules do not have punitive arbitral awards, the whole society is identity.20Century80Time, the fledgling arbitration not reconciled to justice in punitive damages to dominate the field, raised the banner of punitive damages as an equal, to field a space for one person.

1976Years AmericanA New York appeals courtJoan Garrity v. Lyle Stuart, IncThe appeal case, is the face of the arbitration

A punitive damages award of the arbitration agency makes,[5]The face is to submit to arbitration judicial challenge. In the face of the challenge, the court has two choices, or acknowledging the arbitrator has power to make punitive arbitral awards, recognition of arbitrators and judges have equal status; or the revocation of Arbitral Awards of punitive damages in part, to make power punitive arbitral awards is not shared with the arbitration verdict. How to choose,A serious disagreement among the judges. After a heated debate, court to4:3A slim majority ofThe cancellation of the arbitration award punitive damages, part of the ruling, and thus create a arbitrator has not made the power of punitive arbitral awardGarrityRules, affect the rules of USA arbitration system is of great,Long, far-reaching, has not yet been eliminated,When the foreign arbitration award in the American applicationThe recognition and execution,Garrity The rule is often cited by the respondent the recognition and enforcement of foreign arbitral awards as the legal basis for the defense case,Garrity Rules can often be the judge as a precedent to follow the decision the punitive arbitral award shall not be recognized and enforced.

Based on the existing data, we still cannot makeJoan Garrity v. Lyle Stuart IncThe case is America court accepts the first application for recognition and enforcement cases punitive arbitral awards, but it certainly is the case is one of the most influential cases in USA and even in the whole world, is USA court for the first time by judicial procedure to confirmThe arbitrator did not make power punitive arbitration case. USA court formed by the caseGarrityRule:Punitive damages is a sanction measures, the implementation of thisMeasures on behalf ofThe national court only not to encroach on other people's power, punitive damages against power must be exercised by judges on behalf of the state, the arbitrator did not make a punitive arbitral authority; Arbitrator of punitive arbitral award is contrary to the public policy, contrary to the public policy of non enforcement of arbitral awards, must cancel; countries in violation of public policy arbitration member of punitive arbitral award behavior to judicial intervention, to prohibit any organization or individual, in violation of public policy failure, to limit the private nature of the organization of the punitive compensation rights can not be abandoned.

GarrityRules to maintain the traditional legal system, legal system, legal concept and legal traditions, maintain the existing judicial system, opposed to reform and innovation, the development of market economy and draw further apart, so the rule has encountered challenges.1989Years, USA federal appeals court first circuit courtRaytheonAppealCase.Raytheon Company(hereinafter referred to asRaytheon) andAutomated Business Systems, Inc(hereinafter referred to asAutomated) because the franchise contract dispute,AutomatedArbitration,RaytheonThe losing.RaytheonRefusing to accept the arbitration award, the appeal to the court of Massachusetts, toPunitive arbitral awards commercial arbitrator shall have no authority to make the request on the grounds of the cancellation of the arbitration award.The District Court of MassachusettsJudgeJohn J. McnaughtThe producers do not execute the arbitral proceedings not support the request,RejectRaytheonRevocation of Arbitral Awards of punitive damages litigation request, admit punitive arbitral awards with executive power, the court created the support arbitrator of punitive damages award of precedent, the court supported the arbitrator to make punitive arbitral awards icebreaker.RaytheonAgainst the court decision, appeal to the USA federal appeals court first circuit court,The appeal court appointed trial the judgeReinhardtThat the arbitrators of the arbitration agreement authorization based on the right to makePunitive arbitral awards,RaytheonAppealBe dismissed.

The Massachusetts District Court in rejecting theRaytheonUndo the legal concept of such punitive arbitral appeal verdict: (1) forMalicious fraud, whether a judge or arbitrator, a punitive damages for illegal behavior of people power, punitive damages the power not to court (exclusive2) arbitrator of punitive damages from the authority of the agreement of the parties, the arbitrator has no right to transcend party authorized access to make the punitive damages award; parties have not expressly agreed to the arbitrator can make the punitive damages award of the case, the arbitrator may express presumption of the meaning of the parties. In this case, the parties "all disputes in connection with the agreement shall be solved" by the method of arbitration, the arbitration process, the party proposed the punitive compensation request for arbitration, the other party does not request the defense of punitive damages, arbitration, arbitrator according to the presumption of the parties granted the punitive damages award authority, such the presumption is reasonable, based on the facts (3) arbitrator of punitive damages award is constrained by, first by the parties agreed constraints, one is restricted by law, only in the law to the arbitrator has clearly defined circumstances of punitive damages award. In this case, the parties agreed arbitration arbitration rules of the Arbitration Association USA, arbitration rules America Arbitration Association42Authorized association under the arbitrators shall have the right to "in the scope of the provisions of the arbitration agreement, to take any can make the dispute was fair and equitable solution to remedy" award, given the arbitrator of punitive damages ruling power.[6]  

Following theRaytheonCaseAfter,1991Years America Federal Circuit Court of appeals court in ninthToddIn the case of an arbitrator according to supportAAAPunitive arbitral rules;1995Years AmericanThe Federal District Court in MassachusettsIn thePainewebberIn that case"The arbitration agreement does not prohibit the arbitrator to make the award of punitive damages, even if the applicable law of the agreement is prohibited in the arbitration of punitive damages in the law of New York",Support according to theNASDThe rules of the punitive damages award;1997Years America Federal Circuit Court of appeals court in ninthBarnesIn the case of punitive arbitral awards support according to the laws of the state of Minnesota made, that the TribunalThe award of punitive damages is not in violation of the law;2001The court of appeal in MassachusettsDrywallIn the case of rejectedGarrityThe application of case, support the arbitratorAccording to federal law93Article11ParagraphTo make the defendant to the plaintiff3The punitive decision times compensation. American aroundThe court continuously to support the arbitrator to make punitive arbitral awards of judgmentGarrityRules of the wave impact, shook the arbitrator can not make the foundation of punitive arbitral awards, gradually disintegratedGarrityThe social basis of rule of survival.

A centipede dies but never falls down, dead but not stiff, closed, conservative, rigid, backward, represents the concept of judicial powerGarrityRuleSupport for arbitration and new, progressive, open, decentralized,, to establish and perfect the dispute settlement mechanism of diversification trend has been tenacious struggle, during this period, America also appeared some court citationGarrity Rule refuses to execute the punitive arbitration case.

In the affirmative and negative arbitrator to make power punitive arbitral awards contest, America Supreme Court inMastrobuonoIn the case of negationGarrityThe overthrow of the Illinois rule, the Northern States Court, Seventh Circuit Court of appeals court decision, the arbitrator has a decisive rule making power of punitive arbitral awards, resulting inAn arbitrator is unable to make punitive arbitral awardGarrity RuleBattered.MastrobuonoIn the case, the defendant claimed that the arbitrator had no right to force to make the punitive damages award in arbitration procedure, however, the decision of the arbitral tribunal includes$400,000Punitive damages and$159327Compensatory damages. The defendant to pay the plaintiff compensatory damages, but the move request to withdraw the punitive damages award to the local court of. Northern Illinois District Court judge in courtCharles R. Norgle, Sr, J.Agreed to the motion,[7]The Seventh Circuit Court of appeals court appointed judgesSkinnerConfirm the motion,[8]Two the court is based on the contract No.17Choice of law clause of "contract for the laws of the state of New York made decision to apply the laws of the state of New York". Because the New York appeals court had made only the court has the authority to make the punitive damages, and does not allow the arbitrator to make punitive arbitral awards, the judge cited precedentsGarrity v. Lyle Stuart IncCase.

The case has been transferred to the Supreme Court, the Supreme CourtStevensDraw the opposite conclusion, that the contract between the parties to allow the arbitration tribunal to support the plaintiff's request, make the punitive damages award.In theMastrobuonoIn the case of,American Supreme Court not to make the punitive damages award of the arbitrator has power of judgment, but theThe Federal Arbitration Act that national policies tend to arbitration to solve dispute, when both parties agree to arbitration, countries do not have the right to ask the court to resolve the dispute,If the two sides agree to take punitive damages request included in the arbitration matters within the scope of the Federal Arbitration Act, will ensure the implementation of the protocol, and even if the law is the disputed excluded from the arbitrable matters.The Federal Arbitration act tendency arbitration policy doesn't completely without consideration of the two parties of the contract will, because the two parties of the contract by the contract limit arbitration, they can contract in detail the applicable rules.

The highest court in the AmericaMastrobuonosIn the case ofEstablished3Principles of: (1The scope of the arbitration agreement) to define and determine arbitrability matters of freedom,The Federal Arbitration Act to ensure that this agreement will be in accordance with the provisions of its provisions are implemented. When the parties in the arbitration agreement stipulates the arbitrator will has or has not the power of punitive damages award,The express provisions of decisive significance for the possibility of punitive damages remedy. (2) the possibility of punitive compensation for lack of clear rules,That is the scope of the arbitration clause is unclear,The arbitrator will be deemed to have the right to make such a decision,Unless the contract parties have the intention to exclude that punitive relief. If the parties agree to submit their dispute to the arbitration of all,By the arbitration rules and arbitration institutions arbitration enjoys broad powers of,It shows that the arbitrator by way of relief is quite extensive. (3Choice of law clause) contains only entity principle, method of,Not including the arbitration law and policy. Therefore,Choice of law clause designated New York state law should only be understood to include the entity principle of the state of New York,Not including the Arbitration Law of the state program,Although the New York state law prohibits punitive damages,But the case on this issue is not affected by the state of New York case law adjustment. This is a very significant decision American Supreme Court,It is shown that the arbitration tribunal power range is enlarged.[9]

In theMastrobuonoIn the case, American supreme court denied the Illinois state court of appeals doThe arbitrator can not make a punitive damages award decision,Made with the appellate court of Illinois's decision to the contrary. America Supreme Court is the highest judicial organ American, is the court of final appeal, the sentence has the authority and finality, forming the judgment in theThe arbitrators have made the principles of law ruling power of the punitive damages toAll levels of court trial followed similar cases, therefore,MastrobuonoIn the endThe arbitrators have the punitive damages award power dispute, the arbitrator has the punitive damages award authority for the rule of law.

We retrieved American Court precedent, from1976Years AmericanA New York appeals courtJoan Garrity v. Lyle Stuart, IncAppeal to2001YearsDawn company in USA court for recognition and enforcement of arbitration0517Before the arbitral award, American court many admit arbitrator arbitration arbitral awards of punitive damages judgments and negative power of the arbitrator arbitration arbitral awards of punitive damages judgment power, but these cases are limited in the range of America domestic commercial arbitration, arbitration mechanism is related to the USA domestic arbitration institution, although America law enforcement and enforcement of Foreign Arbitral Awards for domestic arbitration laws have consistency, USA domestic law is also applicable to the foreign arbitral awards in USA apply for recognition and enforcement of the case, but the court in the implementation of foreign arbitral awards and the recognition and enforcement of Foreign Arbitral Awards in recognition and enforcement proceduresThe applicable law, such aspects as there are many different. For example, America recognition and enforcement of foreign arbitral awards, recognition program and program execution is separate, whether the recognition of a foreign arbitral award enforceable in USA matters, is the federal court, the federal court the recognition of a foreign arbitral award, decision of foreign arbitral award enforceable in court American, according to the federal court's decision on the case trial again, to finally decide how to execute. No federal court of a Foreign Arbitral Award acknowledges, state courts have no right to enforce foreign arbitral award. American Court Enforcement of domestic arbitration award, no recognition program, and the court is the local courts of the state, if a party refuses to accept the decision, can be gradually to the state court, the federal court to the Supreme Court of appeal. Moreover, USA is1958Contracting years "New York Convention", the recognition and execution of arbitration award made in the other Contracting State, the court first is the application of the "New York Convention","American court is very limited to foreign arbitral award review. Unless the court found convention specifies the refuse or discontinue one ruling the reason, the court should recognize the foreign arbitration award";[10]"New York Convention" provides no applicable only America domestic and domestic precedent, and execution USA arbitration award made, "New York Convention" is not applicable.

The dawn of the company forAmerica District CourtCalifornia North Branch admits the arbitral award is Chinese arbitration organization in the territory of Chinese made, the decision is China nationality, the American, this is a foreign arbitral award. Prior to this, USA court in the recognition and enforcement of foreign arbitral case hearing, not discussed foreign arbitration organizations or foreign arbitrator has power punitive arbitral awards made legal problems, such as, USA judicial practice had not been sure or deny foreign arbitration organizations or foreign arbitrator to make power punitive arbitral awards this case. Dawn company apply for recognition CIETAC0517On the arbitration award, cited by the respondentGarrityCase to support the arbitral tribunal does not have ruled that punitive damages.

Judge Seimu Condi refuted the respondent's point of view, think"GarrityThe case of the respondent is not helpful "," in the arbitration award of punitive damages is a violation of public policy or whether it is New York state prohibited by law and executive China international economic and Trade Arbitration Commission of the punitive damages award is contrary to public policy American unrelated. The respondent did not argue that China international economic and Trade Arbitration Commission ruled in violation of the law or violation of the rules of arbitration China agreed".[11]America District CourtCalifornia North Branch in recognition of CIETAC0517The verdict, ruling in support of the CIETAC arbitration according to the arbitration rules China law and the CIETAC arbitration award of punitive approach, and elaborates the legal idea: the arbitration tribunal is entitled to make a punitive arbitral awards, according to the laws of the state and the ruling parties agreed arbitration rules applicable to determine the award is made, the law of the state where the parties agreed and the applicable arbitration rules allow the arbitration tribunal to make punitive arbitral award, the arbitration tribunal may lawfully according to regulations of punitive arbitral award. In the recognition and enforcement of foreign arbitral proceedings, USA court according to law and the legal precedent is not America active review foreign arbitration in arbitration procedure for adjudication right to national law and the parties agree that the applicable arbitration rules, arbitration court applies the award is made to the country's legal and agreed upon by both parties decide the applicable arbitration rules parties to the dispute or make a punitive arbitral awards has nothing to do with the American public policy, the Court acknowledged that foreign arbitral tribunal for adjudication to national laws and the parties agreed arbitration rules applicable to punitive arbitral authority.

Recognition of foreign arbitration institution for American court ruling to the national law and the parties agree that the applicable arbitration rules is pioneering punitive arbitral power, comply with the "New York Convention" established the principle of application of law, reflects the justice of arbitration support,America District CourtCalifornia District branch of the arbitrators have rules of domestic law making power punitive arbitral award is applicable to the foreign arbitral award, expanded the scope of application of the rules, to acknowledge and opens the way to enforce foreign arbitral awards of punitive damages in America, laid the foundation for the evolution of the rules, by the rule of domestic law for foreign-related law rules, in the world with the reference range.