Reshaping Of Re-Arbitration Legal System

When the parties apply to the court to cancel an arbitral award, the people's court has accepted it and deems that the flaws in it meet the condition to cancel the arbitration award and it also can be corrected by the arbitral tribunal. Thus, the court rules to suspend the cancellation procedure and notifies the arbitral tribunal to make a new award. There are important legal relationships in the re-arbitration system, which include the relationship between the court and the arbitral tribunal, the court and the parties, the arbitral tribunal and the parties. Re-arbitration has the function of protection of the value of justice and efficiency. It provides a way for the parties to protect the legitimate rights and interests, it gives the arbitral tribunal the opportunity to correct the procedural errors, and it improves the way of judicial supervision. However, it also has potential risk. It is likely to reduce the efficiency of arbitration and it may be changed into"two-tier trial system".The UNICITRAL Model Law and arbitration law in most countries adopt this system. Arbitration Law of the People's Republic of China 1995 adopts it and The Judicial Explanations 2006 modifies it, which describe the basic outline of the re-arbitration system. However, re-arbitration system in China has not yet fully resolved the dispute in theory and practice issues. Therefore, the author will introduce the experience of personally involved in the project named"analysis about judicial review of arbitration cases 2006-2008 in Beijing Arbitration Commission", focus on our current situation and use comparative analysis of foreign legislation to point out the problems. Then the author makes some suggestions to reshape the re-arbitration system.The thesis is divided into five parts; the first three parts give a whole view of the re-arbitration system. On the basis of distinguishing two cases in the re-arbitration system and pointing out the subject of this thesis, the author attempts to build the legal relationships in the re-arbitration system and discusses the value and risk of the re-arbitration system. With the provisions of The UNICITRAL Model Law and arbitration law in most countries, the author summarizes the similarities between the systems. IN the last two parts, on the basis of our current situation and research experience, the author points out the problems and makes some suggestions to reshape the re-arbitration system. Details are as follows:The first part gives a whole view of the re-arbitration system. This section explains the legal definition and characteristics of re-arbitration and the author points out that this thesis only focuses on the second situation of the re-arbitration system. Then, the author compares it with the related concepts, analyzes the legal relationships in the re-arbitration system and discusses the value and risk of it.The second part is to discuss the basic theory of the re-arbitration system. It includes the theory of the relationship between re-arbitration and judicial supervision, the legal effect of the re-arbitral award and the arbitral award and if the re-arbitration system violates the basic principle of"finality of arbitral awards".The third part is the comparative analysis of foreign legislation. It primarily studies The UNICITRAL Model Law and arbitration law in most countries, which include United Kingdom and Sweden. Then, the author summarizes the similarities between the systems, that is, in order to guarantee fairness and efficiency of arbitration, they try their best to avoid the risk of the re-arbitration system and promote the function of it to correct procedural errors.The forth part focuses on the situation and the problems of our country. In this part, on the basis of current law and the research experience of the author, the thesis points out the problems of the re-arbitration system in China.The fifth part focuses on how to reshape the re-arbitration system. Referring the provisions of the foreign re-arbitration system, the author makes some suggestions to reshape the re-arbitration system, including the following aspects: improving the way of judicial supervision, reshaping re-arbitration standards, discussing the circumstances for re-arbitration, clearly defining the main body of re-arbitration and analyzing something else that related.