Research On The Independence Of Commercial Arbitrators

This article is based on independence of commercial arbitrator. We analyze qualifications of the commercial arbitrator, the number of commercial arbitrators, the element of arbitration tribunal, removal and replace commercial arbitrator, truncated tribunal, the responsibility of commercial arbitrator, and independence of judicial supervision. We also analyze the internal logic and contact of the specific system. Thus, independence of commercial arbitrators throughout the commercial arbitrators system, is a key to know and comprehensive the system of commercial arbitrators. This article consists of introduction and seven chapters as follows:First, we make an analysis of the origin of the topic in introduction, pointing out that independence of commercial arbitrator is the soul of the whole commercial arbitration system. Major countries, major international arbitration rules and national judicial precedent show that independence of commercial arbitrator has become one of the basic principles of commercial arbitration system. It is the basis of the commercial arbitration system. Second, we make a brief description of the scope of our study, research status, the methods we use, and innovation of the our topic.The first chapter is named as “historical evolution of independence of commercial arbitrator”. We comb on the early, mid, late in the history of the evolution of commercial arbitrator from the perspective of historical evolution in this chapter. And then we point out that, historical evolution of independence of commercial arbitrator showed that it has an important role in the commercial arbitrator system.The second chapter is named as “fundamental questions of independence of commercial arbitrator ”. This chapter is the theoretical basis and the logical starting point to study independence of commercial arbitrator. Fist, we define the concept of “independence of commercial arbitrator”, and point out that independence of commercial arbitrator covers impartiality of commercial arbitrator. The topic actually is the study of impartiality and independence of commercial arbitrator. On this basis, we discuss the applicable law and the standard. We point out that the standard in legislation is mandatory. The standard parties cognized may be higher than the legislation. But it can not be lower. Commercial arbitrators should use the same standard in every stages. The same standard is in favor of parties, arbitral institutions, and national courts use of uniform standard to examine whether the commercial arbitrator lacks independence.The third chapter is named as “factors to influence independence of commercial arbitrator ”. In this chapter, we use examples to describe the factors that affect the independence of commercial arbitrators. These factors are divided into unacceptable factors, between acceptable and unacceptable factors and acceptable factors. Factors to influence independence of commercial arbitrator are endless, but they are very useful to cognize the standard of independence of commercial arbitrator. To address the problem about the independence of commercial arbitrators, the best method is to bond abstract standards and factors together.The fourth chapter is named as “independence of commercial arbitration tribunal”. First of all, we illustrate the qualification of commercial arbitrator. We point out that qualification of commercial arbitrator is of great significance to ensure the independence of commercial arbitrator. At the same time, we should respect the right of party to choose arbitrator. Secondly, we analyze the number of arbitrators that the composition of the arbitral tribunal. We find that both sole tribunal and collegiate tribunal can make sure the independence of commercial arbitrator. But we should consider the relationship between independence of commercial arbitrator and efficiency of arbitration. Finally, we analyze the appointment of a commercial arbitrator. We think that the rules to appoint a sole arbitrator and the presiding arbitrator play an important role to ensure independence of commercial arbitrator.The fifth chapter is “protection of independence of commercial arbitrators”. First, in terms of mandatory disclosure, standard and procedure, we discuss commercial arbitrator’s disclosure. Secondly, we analyze the removal commercial arbitrator, and discuss the subject and decision body of the removal, parties apply to remove the arbitrator he appointed, time of removal, the legal consequences of not within the prescribed time to apply. If the application is accepted, he must be replaced. So we discuss issue and program of replacement, and the arbitration procedure after replacement.The sixth chapter is “independence of commercial arbitrators in truncated tribunal”. Truncated tribunal is a pathological form. There are different opinions on whether it has legitimacy. Some people think it is legal. On the contrary, someone thinks it is illegal. Truncated tribunal is a threat to independence of the commercial arbitrator. Major international arbitration rules on the truncated tribunal, have strict application and relaxed application. The judicial precedent of national courts are further proof of truncated arbitration not only has the legitimacy, but also can prevent the parties interfering the normal conduct of arbitration proceedings with the resign of a arbitrator.The seventh chapter is “legal liability for commercial arbitrators lack of independence”. There are two opinions on whether commercial arbitrators should be legally liable for the performance of duties. Some people hold the negative theory. Another people insist on the positive theory. There are absolute immunity theory and relative immunity theory in major countries. Commercial arbitrator who intentionally or grossly negligent behavior grossly negligent behavior. Therefore, the lack of independence if it is due to intentional or gross negligence, should bear corresponding civil liability.The eighth chapter is “the solutions about the problem of independence of Chinese commercial arbitrator”. Based on the above chapters, we put forward our own ideas on how to improve the independence of commercial arbitrator. China should be clearly defined that commercial arbitrator should be independent. And then China should set out provisions of cognizing the standard of independence of commercial arbitrator. At the same time, China should improve the system of commercial arbitrator.