A Study On The Fact Judicata Of Foreign-related Commercial Arbitration Awards In China

At present,China is in the stage of comprehensively deepening reforms and building an open world economy.Arbitration,as an important method of international dispute settlement,plays an important role in optimizing the international business environment,advancing the construction of the “Belt and Road”,and properly resolving disputes in accordance with law.The Fourth Plenary Session of the Eighteenth National Congress of the Communist Party of China proposed "improving the arbitration system and enhancing the credibility of arbitration",followed by China’s intensive publication of documents that regulate and support the development of arbitration.The ability to develop strategies is insufficient,and the effectiveness of arbitration in national governance and reform and opening-up needs to be improved.As an important part of arbitration,fact finding has important significance in arbitration.With the division of labor in the internationalized society and the development of international trade,related and serial trade and disputes continue to increase.How to avoid contradictory awards in connected and serial trade,and to achieve case-based judgments,is not only related to China’s ability to resolve disputes in arbitration,but also related to China’s arbitration credibility building.Among them,fact determination remains the key.In arbitration,if the facts have been confirmed by the arbitral award in the previous case,how the arbitral tribunal in the subsequent case determines the facts confirmed by the arbitral award in the previous case.This involves the issue of the fact judicata studied in this paper In our country,the issue of fact judicata is not only an important issue in judicial proceedings,but also an important issue in arbitration.Compared with judicial litigation,China’s arbitration academia has not given enough attention to the fact judicata,and the current research mainly focuses on the introduction of concepts.However,the fact judicata exists in China’s arbitration theory and practice and cannot be avoided.For example,Article 7 of the "Tianjin Arbitration Commission Arbitration Evidence Regulations(2014 Version)" directly refers to the judicial interpretation of China’s civil procedure law,and classifies the adjudicated facts into the category of evidence-free facts,thus positioning the fact judicata as the statutory proof effect.However,arbitration is different from litigation.In addition,the statutory proof effect is also quite controversial in the civil litigation field,and the newlyrevised "Supreme People’s Court Several Provisions on Civil Litigation Evidence" also made certain amendments to this.Therefore,it is studied in arbitration the fact judicata is not only the need for arbitration,but also the need for judicial litigation;it is not only a theory,but also a need for practice.Based on the background of the era of comprehensive deepening of reform and opening up,combined with the issue of fact judicata in China’s arbitration and judicial litigation,this paper studies the issue of fact judicata from the perspective of China’s foreign-related commercial arbitration.Improve the theory and rule system of fact judicata of arbitration in China.This paper revolves around the core proposition of " fact judicata of China’s foreign-related commercial arbitration awards",mainly using comparative analysis,legal interpretation and value analysis research methods,along with "what is fact judicata-why is it necessary-The effectiveness of fact judicata-how to apply-how to guarantee " research thinking,focusing on solving the five problems of ontology,value theory,positioning theory,applicability theory and guarantee theory of pre-determined effectiveness.in particular:Chapter 1: The concept and remodeling of fact judicata.This chapter focuses on the core issue of the concept of fact judicata,mainly using comparative analysis,historical analysis,and legal interpretation research methods to investigate and reflect on the current concept,and then analyze the causes and reshape its concept.In particular,fact judicata is recognized as res judicata,pre-determination and pre-determination effect in China’s arbitration,but according to the existing theory,fact judicata is not res judicata,pre-determination or pre-determination effect.According to research,fact judicata comes from the pre-determined effect,which is called pre-determination and exclusion in the Soviet Union,and is called the pre-determination effect after it was introduced into China.The legal exclusion applies not only to the reasons for the award,but also to the subject of the award.Afterwards,the res judicata was introduced into China through Germany and Japan,and occupied the theoretical peak.Fact judicata is passively adjusted to the effect of fact finding in the grounds of adjudication in the theoretical conflict with res judicata.Therefore,fact judicata in our country is a translation error in legal transplantation and passive adjustment in theoretical conflicts,and this is also an inevitable product of civil litigation authority in a specific historical period in China.With the change of judicial litigation system and concept,fact judicata as a product of the authoritarianism system was introduced into arbitration along with the litigation of arbitration.But arbitration is different from litigation,and fact judicata has itsspecial connotation in arbitration.Therefore,this Paper defines fact judicata as: "In China’s foreign-related commercial arbitration,The effect of the facts binding to the later arbitral tribunal that has confirmed in the arbitral award previously,Among them,the fact that have been confirmed in the previous arbitration awards is called adjudicated fact." The above contents together constitute the " ontology " of the effect of fact judicata.It should be noted that the "positioning theory" of pre-determination effectiveness is related to this chapter,but considering its importance,the "positioning theory" of pre-determination effectiveness is formed into a separate chapter.Chapter 2: The rationale for the introduction and its questions.This chapter mainly adopts the research methods of comparative analysis,value analysis and case analysis,focusing on solving two problems.One is whether fact judicata(after remodeling)is introduced in China’s foreign-related commercial arbitration;Problems,the second of which is the general introduction of the following three chapters.In particular,fact judicata exists objectively in China’s arbitration and cannot be avoided.In addition,it can improve the efficiency of arbitral awards,improve the quality of arbitral awards,and enhance the credibility,competitiveness,and influence of arbitration.It should be introduced into arbitration in China.However,the introduction of t fact judicata into China’s arbitration will face three key issues to be resolved,namely the positioning,application and guarantee of fact judicata.The above contents together constitute the "value theory" and "question theory" of fact judicata.Chapter 3: Positioning and adjustment of fact judicata.This chapter focuses on the core issue of fact judicata.It mainly adopts the research methods of legal interpretation,comparative analysis and value analysis,examines and reflects on the current positioning of fact judicata,and sorts out the theories related to fact judicata,Positioning of fact judicata.In particular,fact judicata is positioned as statutory proof effect in China’s arbitration theory and practice,but the legal premise of the statutory proof effect itself is difficult to be self-consistent,resulting in its efficiency and stability value is also difficult to achieve,coupled with its conversion of proof responsibility It is difficult to say that it is reasonable,and it violates the parties ’autonomy,independence and division in arbitration.Therefore,the validity of the statutory certification is not suitable for arbitration.After sorting out the seven theories and experiences related to and intertwined with the effectiveness of thepre-determination,the positioning of fact judicata was adjusted to the factual proof.The above contents together constitute the "positioning theory" of fact judicata.Chapter 4: Applicable mechanism of fact judicata.This chapter focuses on the core issue of the application of fact judicata,mainly adopts the research methods of deductive analysis,value analysis and comparative analysis,focusing on solving the four issues of the effective requirements,scope of application,mode of action and application procedure of fact judicata.In particular,for a fact judicata to take effect,it must meet the requirements of proper jurisdiction,due process guarantee,determination,and finality.Despite the confidentiality of arbitration,as long as the parties can legally obtain the arbitration award and claim the fact judicata,there is no need to limit the subjective scope of fact judicata.According to the type and scope of fact judicata,its objective scope can be classified into main facts,indirect facts and auxiliary facts.Among them,ordinary facts and professional facts have fact judicata,and disciplinary facts have no fact judicata in principle.In arbitration,the subject,object and availability of the pre-determination effect all affect the mode of action of fact judicata.Therefore,the mode of action of fact judicata should be analyzed based on the availability of factual data and the applicable subject and object.The application of fact judicata needs to be realized by procedures.In the procedure of fact judicata,the party invoking the fact of the prejudgment shall claim the fact judicata,and the arbitral tribunal shall determine fact judicata based on the second-tier trial method.The above contents together constitute the "applicability theory" of fact judicata.Chapter 5: System guarantee for fact judicata.This chapter focuses on the core proposition of the system guarantee of fact judicata.It mainly adopts the research methods of comparative analysis and empirical analysis to sort out and reflect on the current guarantee system of fact judicata.Predict the optimization plan of the effectiveness guarantee system.In particular,fact judicata has no special guarantee system in arbitration in China,and can only be embedded in the existing internal and external arbitration guarantee system.However,the lack of embeddedness of fact judicata in the existing internal and external guarantee system of arbitration results in insufficient protection.This is mainly due to the lack of clear applicable rules in the arbitration of fact judicata,but whether the inclusion of arbitration rules is mainly subject to the willingness of arbitration institutions.Although the diversified internal and external guarantee systems for arbitration outside the territory provide experience for embedding and guaranteeing fact judicata,they also have limitations.The guarantee systemfor fact judicata in our country should optimize the internal and external guarantee systems for arbitration on the basis of the autonomy of the parties,by clarifying the applicable rules of t fact judicata,strengthening the quality control system for arbitration cases,strengthening the judicial review procedure for arbitration and improving the arbitration supervision and evaluation system,To build a "four-in-one" fact judicata guarantee system.The above contents together constitute the "guarantee theory" of fact judicata.