Research On Malicious Arbitration As Abuse Of Right To Withdraw Application

Arbitration as a way of resolving disputes has a long history. From thegradually institutionalization in the late Middle Ages in Europe, to the Qinggovernment officially gave the right to the Commercial Arbitration Chamber in1904by enacting the " Chamber of the simplified prospectus ", arbitration is alwaysrelatively more efficient than litigation in resolving disputes whether in the West orthe East. This efficient “final and binding" has higher requirements on the fairnessof the procedures. However China’s relevant laws and arbitration rules have eitherexpressly or impliedly given the applicants the right to withdraw the arbitration, butfail to detail any restrictions of using it. So when the applicants abuse this right inpractice for their own personal benefit, there comes the unfairness because netherthe Commission nor the tribunal is difficult to make a difference when problemsarise due to the imperfect legislation constraints and some other factors. That is notonly unfair to the respondent, but also detrimental to the efficiency of the arbitrationprocess. The purpose of this research is to explore the approach of regulating suchmalicious arbitration, and to stop similar situation occur in time.Main research methods:1. Survey: take advantage of the internship opportunityin Changchun Arbitration Commission, collect related research materialpurposefully and systematically.2. Comparison: give advices on improvingdomestic arbitration legislation by comparing related foreign legislation onarbitration.3. Literature analysis: find the problem and the solution of it by reading alot of books and papers.Significance of this research:1. Promote the importance of procedural issuesstudy in arbitration field.2. Find the problem base on arbitration practice and goback to arbitration practice to solve the problem.3. Provide advices on improvingdomestic arbitration legislation.This research on malicious arbitration follows the following logical idea: First,use an example to explain what is malicious arbitration, and define its concept. Second, make a distinction between use and abuse of the applicant’s drawback rightby analyzing different drawback ways, and clarify the behavior of the applicantwhich circumvent the law not only harms the respondent’s legitimate rights andinterests, but also resulted in a waste of valuable arbitration resource, while the mostimportant thing is to undermine the fairness of the arbitration proceedings, so wemust take measures to regulate that. Last but not least, compare relevant provisionsof Civil Procedure of Taiwan, Japanese arbitration Law and the Federal rules ofCivil Procedure, learn the strengths of various legislations, and proposed a plan tocurb malicious arbitration after comprehensive consideration. That is not only fix theright to withdraw an arbitration in legal form, but also clear the certain conditions ofthe arbitral tribunal to decide whether to permit a withdraw application or not, andthe certain conditions of the arbitration institution to decide whether to accept anapplication which has been withdrew before, at the same time set a higher price forapplicants when they withdraw a case illegally.