Research On The Third Party System In Arbitration

With the increasing complexity of commercial activities,the situation involving the interests of third parties in the trial process of civil cases is becoming more and more common.In order to deal with this problem,a system of third party participation in litigation has been established.But according to the traditional theory,arbitration can only be conducted between the parties to the arbitration agreement,and the third party can not participate in the arbitration procedure because it is not the signatory of the arbitration agreement.Therefore,some scholars advocate the introduction of the third party system in arbitration,in order to adapt to the actual situation involving the interests of the third party.There have been disputes about the third party in arbitration in the academic circles of our country.On the basis of defining the concept of the third party in arbitration,this paper analyses the logical obstacles to the construction of the third party system in arbitration,compares the relevant rules of the third party system in arbitration abroad,and puts forward the basic scheme of establishing the third party system in arbitration.The text consists of the following five parts:The first part: the basic definition of the third party in arbitration.By analyzing the different explanations of the concept of the third party in arbitration in academic circles,the author puts forward the definition of the concept of the third party in arbitration in this paper.The third party in arbitration refers to the signatory of the non-original arbitration agreement that has independent claim on the subject matter of arbitration or has legal interest in the outcome of the case after the arbitration procedure has started.On this basis,through the comparison with the third party in the lawsuit,we further summarize its relevant characteristics.The second part: Disputes involve the dilemma and Countermeasures of the third party in arbitration.Because of the involvement of civil legal relations,there are a lot of cases involving the interests of third parties in arbitration trial.If each disputing party is allowed to submit the same dispute to arbitration separately,it will obviously cost a lot of money and will not be conducive to the one-time and thorough settlement of the dispute.The third party arbitration system incorporates the third party,the applicant and the respondent into the same arbitration procedure,so that the parties can thoroughly resolve the relevant disputes under the same procedure.This system can not only avoid multiple and contradictory judgments under the same dispute,realize the fairness of the result of the judgment,but also effectively reduce the cost of resolving disputes,which is in line with the value goal of arbitration in pursuit of efficiency.The third part: The logical obstacles and breakthroughs in the construction of the third party arbitration system.The main controversy in the construction of the third party arbitration system is how to join the arbitration procedure that has already begun in the absence of an arbitration agreement by the third party.Unlike the dispute settlement mechanism of litigation,the principle of party autonomy is the basis of arbitration.This means that the arbitral tribunal cannot exercise jurisdiction over a third party directly on the basis of its functions and powers as the court does.Therefore,the way to break through in the construction of the third party arbitration system should be to relax the determination of arbitration agreement,and no longer use the signing of written arbitration agreement as the sole criterion to judge whether the parties have arbitration agreement.If the third party can prove in other ways that there is an arbitration agreement between the third party and the original parties,whether the agreement is presumed or supplemented afterwards,as long as the third party can achieve the same validity as the written agreement to prove the existence of the arbitration agreement,the third party can join the arbitration proceedings that have already started.For an arbitral tribunal,exercising jurisdiction over the third party on the basis of this presumed or supplementary arbitration agreement is in accordance with the fundamental principle of autonomy of the will and compatible with the nature of the arbitration system.The fourth part: Extraterritorial investigation of the third party arbitration system.From a worldwide perspective,there are a certain number of legislation and arbitration rules related to the third party arbitration system.The Netherlands,Belgium,the United Kingdom,the United States and other countries have successively adopted national legislation to determine the rules governing the participation of third parties in arbitration proceedings.Major international arbitration institutions have also adopted amendments to the arbitration rules to adapt to situations involving the interests of third parties in practice.Whether foreign exceptions or relevant arbitration rules are concerned with the third party arbitration system,they usually adopt two modes: direct regulation and indirect regulation.Among them,the direct provision model has been approved by most countries and the rules of arbitration institutions.In view of the fact that the existing laws and judicial interpretations of our country have not yet stipulated the relevant issues of the third party in arbitration,the author believes that the arbitration commissions in various parts of our country can first establish the system of the third party in arbitration by amending the relevant arbitration rules.The fifth part: the preliminary conception of the third party arbitration system.The construction of the third party arbitration system is the logical end-result of this paper.The third party system of arbitration includes two aspects: the participation procedure of the third party in arbitration and the rights and obligations of the third party in arbitration.The introduction of a third party in arbitration proceedings is generally based on the request of a specific subject.The Arbitral Tribunal determines whether there is a direct or presumptive arbitration agreement among the three parties by examining the attitude of the applicant,the respondent and the third party to the application,and finally decides whether or not to allow the third party to participate in arbitration.After joining the arbitration,the third party in the arbitration procedure will naturally enjoy the relevant rights and obligations of the parties in the procedure.However,compared with the applicant and the respondent,the rights and obligations of the third party in the arbitration procedure are different.Specifically,the right of the third party in arbitration to choose arbitrators will be limited to a certain extent,but also need to perform additional confidentiality obligations.