On Arbitrators' Power And Liability

This article takes arbitrators'power and liability in commercial arbitration as the theme to study. Beginning with arbitrators'special status and their power, this article separately analyzes and discusses the norms that should be obeyed when arbitrators properly perform their power, and the liabilities that should be bear when they improperly perform their power. Firstly, writer discusses the content, function and other related theories of arbitrators'codes of conduct. Then, as for arbitrators'liabilities, writer expounds and proves that is unreasonable to make arbitrators bear civil liability or criminal liability, and that is reasonable and feasible to make them bear professional liability. Basing upon these theories and aiming at China's present condition, this article raises the advices which is about consummating the arbitrators'codes of conduct, and establishing the principle that arbitrators have the right of immunity of legal liability, and assuming the system of arbitrators'professional liability.The whole article is divided into four chapters.The chapter one generally analyzes arbitrators and their power. At first, this article points out the special and important status of arbitrators. Secondly, this article analyzes the definition, characters, resources and content of arbitrators'power from the view of static state. At last, it analyzes the definition, characters, basis and principles of performing power from the view of dynamic state, and then, lists the improper conditions of performing power.The chapter two concerns the arbitrators'codes of conduct. On the base of defining its concept and analyzing its efficiency, this article points out the necessity of arbitrators'codes of conduct. Then this article generalizes its content and analyzes its function, such as guiding, restraining and evaluating.The chapter three discusses about arbitrators'liabilities when they perform power improperly. Upon the base of making clear the definition, category and legal sense of arbitrators'liability, this chapter respectively discusses the reasonability and feasibility of civil liability, criminal liability and professional liability. On civil liability, after commenting on several views, writer raises the view that the relationship between arbitrators and parties is special status relationship. According to this view and thinking of the nature and dependence of arbitration, writer puts forward that arbitrators should be exempted from civil liability. On criminal liability, this chapter makes comments on the crime of arbitrating with perverting the law. After analyzing that there is no reasonability on theory, while there are negative consequences in practice, writer puts forward that arbitrators should be exempted from criminal liability. On the part of professional liability, after making clear its concept and characters, this chapter expounds and proves that it is necessary to establish the system of arbitrators'professional liability, and generates the main forms of it.On the base of discussion above-mentioned, the chapter four analyzes our country's present conditions of arbitrators'codes of conduct, and of arbitrators'liability system. And then, this chapter raises the advices to perfecting arbitrators'codes of conduct, and the view of establishing the principle of arbitrators'right of immunity from legal liabilities, and brings out the plan of system of arbitrators'liability in our country.