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Research on Judicial Supervision of Arbitration

Author: ZhangWei
Tutor: ZhangShiQuan
School: Shandong University
Course: Procedural Law
Keywords: The supervision of arbitration Autonomy Contractual
CLC: D925.7
Type: Master's thesis
Year: 2010
Downloads: 245
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Abstract

The arbitration is playing an increasingly important role in the settlement of social disputes. Compared with litigation and arbitration has its unique advantages, But it is undeniable that there are a number of shortcomings and deficiencies which arbitration itself unable to overcome. The contractual nature and non-mandatory of arbitration system determines that it could not leave the judicial system and independent. If we too much emphasis on the autonomy and contractual nature of arbitration, it would not only weaken the judicial supervision of the court, more importantly, the effectiveness of the arbitration itself will face tough challenges for losing the support of judicial power. But, if the court to the arbitration carries on the depth intervention, the arbitration would lose its autonomy and contractual advantages, and thus become a vassal of the Court. The supervision of the court to arbitration is essentially a question how to deal with the relationship between the finality of arbitral awards and judicial review, that is, how to maintain the balance of arbitration system between effectiveness and fairness. The state power through the courts for judicial intervention on the one hand to keep control of the arbitration, the other is to ensure that the autonomous values of arbitration system are not due to excessive lost. Arbitration legislation is always seeking a balance between the contradiction in protection of the parties to arbitration contract autonomy and the maintenance of the law’s uniformity and fairness.The judicial supervision of arbitration have many problems to be solved. Such as when the court to review the award, the arbitrator did not have the right to participate, and did not listen to the views of the arbitral tribunal. The supervision of the arbitration is too absolute, so the parties have no statutory remedy to the court’s erroneous ruling. The court to domestic arbitral awards carries on the absolute physical examination. Ruled that no enforcement of arbitral awards and also set aside revocation of arbitration ruling system has suspicion of the duplication. Judicial supervision did not adequately reflect the principle of party autonomy.The healthy development of arbitration can not be completely ruled out supervision of the Court, also, the court can not interference and control the arbitration excessively because the arbitration needs appropriate supervision. Looked from the current development of arbitration, the focus of court supervision used to lie in supervising the entity of arbitration to safeguard the unity and fairness of the law, but now it focus on guaranteeing the fairness of arbitration from the procedural way. Similarly, it changed from a comprehensive intervention to the supervision of principles. Based on this fundamental principle and follow the international trend of development, we should consummate our judicial supervision system of arbitration from many aspects. How to supervise the entity of arbitration and how to consummate the supervision mode of no enforcement and revocation of an arbitral award are the focal points. The supervision of the arbitration entity (That the tension between the substantive justice of arbitration and the final decision) needs to lay aside the view of comprehensive supervision theory and procedure supervision theory either that or this. If the parties decide whether to supervise the entity of arbitration all by themselves, many theoretical difficulties can be easily resolved. Whether consider the situation of us or the common practice of the International, the system of no enforcement has many malpractices, so we should cancel it and consummate the system of revocation of arbitration award. To perfect the system of revocation of arbitration award, we still have something to do, such as stipulate its legal matter reasonably, shorten the deadline of applying for revocation, make sure the nature of revocation proceeding and make a clear stipulation to the specific procedure.

Research on Judicial Supervision of Arbitration

Abstract

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