Research On Several Legal Issues Multi-party Arbitration Of International Commercial Arbitration

Multi-party arbitration which occurs more frequently in internationalarbitration procedure has been accepted as a solution to settleinternational commercial disputes. For this reason, recently majorinternational arbitration institution amended their arbitration rules toadd articles dealing with multi-party arbitration situation and heateddiscussion regarding this issue could be heard among the scholars.Throughcombing theoretical analysis and summarization of practices, this articlereveals several legal issues with regard to multi-party arbitration ininternational commercial arbitration and provides suggestion on Chinesemulti-party arbitration issues.This article is composed of forward, text, and the conclusion.The textis divided into four Chapters, which shall be discussed in detail asfollows:Chapter one aims to introduce the basic knowledge on multi-partyarbitration including the definition and related theories.By analyzingthe necessity to set up multi-party arbitration system, we can concludethat the possibility of the conflict verdicts occurred is reduced, theefficiency of arbitration is improved and the use of the evidence ismaximized owing to multi-party arbitration. While attention shall alsobe given to the challenges it may cause against traditional arbitrationtheory i.e. Principle of party autonomy, Principle of equal treatment ofthe several parties and Principle of confidentiality as well as problemsbrought about such as uncertainty of approach choosing, several issuesregarding consolidate arbitration, absence of default rules with respect to appointment of arbitrators and obstacles to recognize or enforce thearbitral award. Last but not least, brief introduction and analysis willbe given to the supporting theory i.e. Theory of Third Party in Arbitration,Theory of consolidate arbitration and Theory of extension of arbitrationagreement to non-signatories.Chapter two discusses the choice of approach on multi-party arbitrationmatter. By researching on state legislations and arbitration rulesenacted by international commercial arbitration institutions, twoapproaches toward the multi-party arbitration could be found, which areConsolidate arbitration and Joinder of arbitration respectively. Wherethere is no such state legislation, multi-party arbitration could alsobe brought in by taking certain explanation measures as indirect approach,which is recognized as the practice of extension arbitration agreementto the third party. Problems detected from legislation and rules abovesuch as biased choice of approach, the dilemma between party autonomy andtribunal’s discretion to compel, lacking in implemented rules are raised.By analyzing problems mentioned above,critical elements considered on thechoice of approach are advanced. Similarly, how the recognition andenforcement of arbitral award could take effect on such choice is alsotaken into account.Chapter three goes deeper on the practical issue of multi-partyarbitration, which is a matter of formation of arbitral tribunal.Byresearching on relevant rules among the state legislation and arbitrationrules by far,two patterns could be concluded in the recommendation ofarbitrators to form a tribunal, which could either be appointed by partiesor designated directly by arbitration authority. The former might bechallenged due to minor violation against Principle of equal treatment to the parties, the latter is accused of detriment to Principle of partyautonomy.Lastly,a solution to tackle the problem above is presented,which values Principle of party autonomy and advocates pattern involvingarbitrators appointed by parties in addition to slight modifying on thepart with equal treatment concern.Final Chapter focuses on the multi-party arbitration issue in China. Byresearching on Chinese legislation on arbitration matter and arbitrationrules enacted by CIETAC and CMAC, two major foreign commercial arbitrationinstitutions in China as well as arbitration practice thereof, issues arediscovered.i.e.no default rule in legislation on such issue, lacking inarbitration rules on joinder of arbitration from both of institution,thecondition applied in the practice of consolidation arbitration isextremely rigid. Given the situation above, suggestions are provided inthe following three aspects: fill the gap of state legislation, modifyarbitration rules according to certain requirements, and assist to draftan arbitration agreement with articles concerning multi-partyarbitration issue.