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Study the evolution of arbitration institution in China

Author: YuanZhongMin
Tutor: XuYongKang
School: East China University of Politics and Law
Course: Legal History
Keywords: Arbitration institution Arbitrator China International Economic and Trade Arbitration Commission The parties The arbitral tribunal Arbitration Rules Arbitration agreement Arbitration legislation Arbitration Law Arbitration system
CLC: D925.7
Type: PhD thesis
Year: 2006
Downloads: 622
Quote: 5
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Abstract


Arbitration organs are non-profit administrative organizations established for disputes settlement between parties. In a broad sense, arbitration organs are comprised of arbitration administrative organs as well as arbitration award organs while, in a narrow sense, they only refer to arbitration award organs.Arbitration administrative organs, with rights to manage arbitration issues, have such major functions as drawing up arbitration regulations, settling arbitration charge standards, organizing administrative arbitrators, establishing arbitration court, making related coordination, etc. Arbitration award organs refer to arbitration courts, which directly judge and sentence disputes between parties. These two kinds of organs are the guarantee of implementing arbitration institutions as well as the significant parts of protecting parties’legal rights, maintaining social stability, building up harmonious society and perfecting social dispute settlement system.As non-profit organizations, arbitration organs exert rights in conformity with the law. In terms of the non-governmental characteristics of arbitration, the legal attributes or the practical functions of the organs, arbitration organs play a decisive role in resolving disputes, in implementing arbitration institutions and in developing the whole arbitration system. The organs not only function as the core in arbitration proceedings, but reflect traits of various arbitration systems in different countries.No doubt, the issue of“Arbitration Law of China”sets up the system as a whole while the establishment of the organs and their regular practices most effectively and directly reflect the implementation of the institutions and even the whole procedure.This thesis written on the basis of regular practices of the arbitration organs: searching for the generality in the establishment of the organs; revealing the nature and differences of various organs; finding defects in regular practices of arbitration organs; and exploring new methods to improve them. The above-mentioned can be regarded as unique points in the study of the actual practices of the arbitration organs.Three elements of the practices of arbitration organs consist of arbitration agreement, arbitration regulation and element research carried out by the arbitrators. Among them, the arbitration agreement is the premise and basis of executing arbitration rights. It connects the relationship between parties and arbitration organs, laying legal foundations for handling disputes between parties in accordance with arbitration regulations. When the arbitration court established, arbitrators would play the leading role of resolving disputes between parties or the pivot of the whole arbitration procedure. The arbitration regulations are the basis of balancing parties’rights and responsibilities. Their legal position is only second to the mandatory rules of arbitration law and rules of substantive civil law involved. The arbitration regulations are regulatory documents of normalizing conducts and procedures of arbitration and also the recourse for arbitrators in executing arbitration rights. The quality of arbitration regulations directly reflects the prestige of the organs. The regulations realize the integration of all sorts of politics, economies, ideologies, cultures and laws.The arbitration agreement is the basis of legality. Particular arbitrators, arbitration organs and their regulations are all derived from arbitration agreements. According to arbitration regulations, the arbitrator resolves disputes appointed in the arbitration agreement. On the other hand, arbitration regulations restrict the whole procedure of dispute settlement executed by arbitrators in accordance to the agreement. Thus, the arbitration agreement, the arbitration regulation and the arbitrator relate with each other. All of these three elements closely connect with the practices of arbitration organs. If the organs are deprived of one of the elements, they cannot carry out regular functions.In this thesis, the arbitration organs of China are placed in a global range. The elements of the organs are analysed in the form of demonstration and comparison so as to map out the blueprint of future reforms in arbitration organs of China and make efforts to reach world level in this field.The thesis is divided into five chapters. Chapter one focuses on the study background of arbitration organs: the brief introduction of the development of arbitration systems in China and the general situation of international arbitration systems; and the values of the arbitration organs. National legislations, international conventions and arbitration organs founded within nations but possessing the function of resolving international disputes feature the new situation of present international arbitration. No registration among arbitrators, no unification of arbitration organs and multinational applicability of arbitration regulations get into the development trends of current arbitration system, especially in European countries.Chapter two is devoted to the analysis of the development of arbitration organs (in historical aspect). Setting the development of arbitration organs in China as the chief subjects, their advantages and disadvantages are searched out through the study. The issue of“Arbitration Law”normalizes all kinds of arbitration practices and also decreases the administrative factors; however, differences still exist in the recognition of politics, economies, cultures and laws in different parts of China. Now that administrative factors remain in constitution and function, China must go further to revert the real value of arbitration.Chapter three is addressed to the analysis of arbitration organs through demonstration (in practical aspect), mainly focusing on the concrete practices. The elements of arbitration organs, their practices and specific cases are analysed in order to deduce the merits and demerits. Among representative arbitration organs in China, there are differences in regular practices of arbitration agreements, arbitration regulations and processes of choosing and employing arbitrators. The disagreement of arbitration systems in internal and external respects is unfavorable for setting up authoritative arbitration organs. Moreover, the inherent advantages of arbitration and the organs will also be weakened due to planning administration.Chapter four tries to display the comparison between different arbitration organs (in lateral aspect), starting with the distinguishing features of the representative foreign arbitration organs in current world. From a macroscopic aspect, comparisons are made in respect of historical development and values of arbitration organs. From a microcosmic aspect, comparisons are made in respect of the three elements of arbitration practices, to seek the internal similarities, differences and regular patterns of the organs. Inherent shortcomings used to exist in the arbitration organs in China. However, as a way to resolve social disputes, arbitration must be fully advocated and enhanced after China’s entry into WTO. So far as the elements of arbitration organs are concerned, China must draw on the experience of western countries, update concepts in terms of legal ideology and legal cultural background and make arbitration and the organs a part of civil society and market economy. The last chapter is to discuss the reform trends of arbitration organs (in future aspect): exploring future development in regard to the value standard and notion of arbitration; and mapping out the concrete reform trends of arbitration organs. Formation of a widely accepted system in the society is considered an essential part in building up a society of harmony. Thus, the functions of arbitration organs cannot be substituted. The procedure of resolving disputes is the process of keeping the stability of social economy, the process of respecting the parties’autonomy of will, the process of maintaining freedom of contract and the process of protecting the parties’legal rights. Therefore, the reforms of arbitration organs should, in return, promote the harmony in society.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Arbitration Law
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