Theoretical Reflection On International Commercial Arbitration, Judicial Supervision Mode

The relation between judicature and arbitration has attracted extensive attention to during the development of intemational commercial arbitration. Different disposals in judicial review resulted from different views about the relation definitely affect the development, and even the existence of international commercial arbitration. Thus, men of insight have raised various opinions about the judicial review of international commercial arbitration, and each has gained some support. The present situation indicates that the research on the judicial review of international commercial arbitration is far from consummate. In order to benefit the reform and improvement of the judicial review pattern of international commercial arbitration in China, in this thesis, the author systematically re-ponders those opinions, and analyzes the controversy theoretically.The thesis, which is composed of four sections, covers the justness of the judicial review of intemational commercial arbitration, the present theory disputes over the judicial review patterns, and the analysis and re-ponder over the controversy, as well. At last, the author put forward a proposal for the perfection of the judicial review pattern of international commercial arbitration in China.As a system arrangement, the judicial review of international commercial arbitration needs to prove its justness first. Section Ⅰ presents the demonstration. It is held in the thesis that the judicial review of international commercial arbitration is naturally derived from the view on power, and the characteristics of state provides the possibilities of its impacts upon commercial arbitration. The softness of arbitration, from the point of effect, decides the need of judicial review, as an exercise of state power.Another important problem is led to as we admits the justness of the judicial review of international commercial arbitration, that is, its moderation, in other words, the judicial review should take which pattern to accelerate the development of international commercial arbitration, and at the same time, avoid its power abuse. People have different ideas about it. Section Ⅱ concludes the present opinions, such as Unite Entire Supervision, Double-track Procedural Supervision, Single-track Procedural Supervision, and Revised Entire Supervision. Those theories oppose to each other in two aspects. Firstly, in criteria, whether the judicialreview of international commercial arbitration should be detached from that of domestic arbitration. Secondly, how to handle the procedural and factual matters in judicial review.Those conflicts and debates reflect the attractiveness of the judicial review of international commercial arbitration. However, it is urgent and practical to seek the best pattern. Thus, it is necessary to re-ponder those theories and choose one of them, or seek a better substitute, and establish the judicial review pattem accordingly. With the two clues — single-track or double-track in criteria, and procedural or tactual in content — those theories ate re-pondered in Section Ⅲ. The author tries to get the so-called Revised Single-track Supervision through a way of syntext in the interactive knowledge framework.It is held in the thesis that, in criteria, the double-track pattern has ineluctable defect. On the contrary, single-track pattern is adoptable, not only because it tallies with the basic principles in commercial field, but also meets the inherent requirements of market economy, and is strongly supported by the theory of diversity in social functions. As a result, it has been the main trend to treat international commercial arbitration and domestic arbitration with the same criteria.Through the study of three basic problems — the essence, character, and value of commercial arbitration, the thesis comes to a conclusion that the judicial review should be narrowed down to the extent of procedural matters. In the meantime, the courts should be entitled to review factual matters in arbitrament, with the agreement reached by the parties.The purport of theory goes far beyond indulging in self-admiration. The genuine scientific theory is not the result of dull meditation, nor the deduction of the logic significations in some hypothesis. It is the result of the observations, inference, and verification which set out from and return to the facts. Thereof, deriving from practice and then guiding practice is the significance of theory. In Section Ⅳ, a probable way is provided to re-construct the judicial review pattern apply to international commercial arbitration in China, that is, the Revised Single-track Procedural Supervision. In this section, the author proposes that in principle, the judicial review should be exercised in single-track procedural supervision, in stead of the double-track one, and in certain circumstances, factual matters should also be reviewed.