A Study On Judicial Envolvement Of International Commercial Arbitration

A critical issue of international commercial arbitration is how to coordinate therelationship between arbitration and judicature. Different from other alternativedispute resolution mechanisms,most national laws implement the final effect toarbitration award. Mainly in view of above characteristics of arbitral award,countriesgenerally give the court the power to supervise the arbitration. On the other hand,toensure the smooth progress of the arbitration proceedings,the courts should alsosupport and assist the arbitration in some areas. From a global perspective,therelationship between the judicature and arbitration overall has shown the trend fromstrict supervision to moderate supervision. Though there is similar trend in judicialenvolvement rules,but there are still many specific designs of the system in variouscountries. Currently,foreign arbitration theorists have different understanding ofjudicial supervision and assistance,the provisions of various national legislation arethe same situation. In China,It is also a critical issue to develop a reasonable judicialenvolvement system,including how to determine the scope of judicial review,methods and procedures,and how to design the construction of judicial support forthe international commercial arbitration.Through in-depth examination and analysis of the relationship betweeninternational commercial arbitration and court,and combing through more systematicand comprehensive previous theoretical results,The purpose of this paper is toestablish more profound understanding and form relatively systematic demonstrationand conclusion,strive to form the concept of a more profound understanding and the formation of a more systematic system and conclusions. On the base of above practiceand theory study,the paper will put forward the advices on the chinese judicialenvolvement system of international commercial arbitration. The paper comprises5Chapters,in addition to an Legislative Suggestions.Chapter â… :Introduction. This chapter aims to clarify some key concepts as thebasis for the entire study. This chapter involves three aspects:First,the basic conceptsof international commercial arbitrationï¼›Second,the concept of judicial envolvement.Third,the necessity and rationality of judicial envolvement in internationalcommercial arbitration.Chapter â…¡:The judicial envolvement on effectiveness of internationalcommercial arbitration agreement. The arbitration agreement is the cornerstone ofthe arbitration system. The effect of the arbitration agreement is broad,not only tobind for the parties, but also to exclude the jurisdiction of the courts,and give thejurisdiction of the arbitration institution. However,the effect will not occur unless thearbitration agreement itself has validity. According to the relevant internationaltreaties and national laws,before the start of the arbitration,during the arbitrationprocess,and after the arbitration award,the parties can appeal the court to review theeffectiveness of arbitration agreement. The review of the effectiveness includes thesubstantive elements and the formal requirements of the agreement, and theArbitrability.Chapter â…¢: The judicial envolvement on international commercialarbitration proceedings. For various reasons,when the parties agreed to arbitrationin the matter,there are often not sufficiently comprehensive or incomplete arbitrationclause in the agreement. It affects the normal advance of the arbitration proceedings.When the parties can not reach agreement on these issues or a dispute, the judicialenvolvement on the procedure of the arbitration would become necessary. Such asfollowing measures:1,If a party violated the arbitration agreement and put forwardthe dispute to the courts, the other party may apply to the court to terminate judicialproceedings.2,the Court may designate or appoint or remove the arbitrator accordingto agreement of the parties or the arbitration rulesï¼›As requests of the parties, thecourt may take interim measures on the property,evidence,In particular,the conductof the parties. This chapter will mainly study the judicial envolvement of international commercial arbitration proceedings,including the active judicial supporton arbitration proceedings,and also including some judicial supervision.Chapter â…£: The judicial envolvement on international commercialarbitration award. The finality of arbitration awards is bound to bring out thecorresponding execution of the res judicata effect,National legislation not onlyrecognizes it through judicial support and assistance, but also affects it appropriatechecks and balances by judicial envolvement. In the judicial envolvement,therevocation of the arbitral award is the main way of recourse. As the national political,economic, social, legal and cultural differences,especially judicial tradition,revocation of an arbitral award in the system of national legislation and practice is notuniform,even in some respects,there are significant differences. This chapter willmainly study the revocation of international commercial arbitration awards,on theabove basis,will also discuss the practice in this area and set forth some suggestion inChina.Chapter â…¥:The judicial envolvement on recognition and enforcement ofinternational commercial arbitration awards. It is a precondition on recognitionand enforcement of international arbitration award that how to identify the nationalityof an international commercial arbitration award. The standard adopted by "New YorkConvention" greatly solved the problems,the standard has been adopted by a numberof domestic arbitration legislation to simplify the problem."New York Convention"provides the reasons for refusal of recognition and enforcement to foreign awards inpractice,this legislative method has been adopted by most countries. Currently,thereis few country to recognize and enforce arbitral awards which has been revoked bythe foreign court. The Chinese legislation and judicial practice also have someproblems and should make some legislative modification to solve it in this area.Meanwhile,on the base of systematic study,the paper also sets forth thelegislative proposed on Chapter VII of the Arbitration Law of China,"SpecialProvisions of foreign-related arbitration". It is an attempt to improve China's judicialenvolvement rules on international commercial arbitration.