Study On The System Construction Of Ad Hoc Arbitration In China Under The Background Of The Reform Of Arbitration Law

As a dispute resolution mechanism,commercial arbitration system,based on respecting the principle of party autonomy,provides the parties with an alternative to litigation to resolve disputes.With the advantages of autonomy,flexibility and efficiency,it is favored in the field of trade and investment.The ad hoc arbitration highly embodies the principle of party autonomy,which shows its own advantages on the basis of having the basic characteristics of arbitration.Originating from the ancient European society,ad hoc arbitration occupies an important position in the historical evolution of the arbitration system.It is still widely adopted by various countries and international organizations and plays an important role in the commercial dispute resolution at home and abroad.The arbitration legislation of European and American countries is based on the ad hoc arbitration,fully considering the compatibility between the legislation and the ad hoc arbitration,establishing the main body status of the ad hoc arbitration in the legislation.Different from the international attention paid to ad hoc arbitration,Article 16 of the arbitration law promulgated by China in 1995 stipulated that the validity of the arbitration agreement shall be determined by whether the parties to the arbitration make an agreement on the arbitration institution,which reflects the negative attitude of China's legislation towards ad hoc arbitration.The systematic denial of ad hoc arbitration in China's legislation means that the ad hoc arbitration awards made in China cannot be recognized and enforced,resulting in the "unequal" situation that China,as a state party to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitration Award,needs to recognize and enforce the foreign provisional arbitration award.In addition,with the promotion of the "One Belt And One Road" strategy and the establishment of the pilot free trade zones,commercial disputes at home and abroad in China are increasing and showing diversified characteristics,and the current dispute resolution mechanism is in urgent need of further improvement.The system predicament and the current realistic demand have created the opportunity for the system construction of ad hoc arbitration in our country.The negative evaluation in legislation is the biggest legal obstacle to the construction of China's ad hoc arbitration system.On December 30,2016,the Supreme People's Court issued the opinions of the Supreme People's Court on providing judicial guarantee for the construction of pilot free trade zones,in which arbitration under the "three-specific conditions" are essentially ad hoc arbitration.However,this article is mainly a rule of principle,which only provides a limited guiding role for the practice of blurry the conditions into ad hoc arbitration.With the implementation of pilot free trade zones,rules relating to ad hoc arbitration have been formulated one after another.However,on the whole,China's current arbitration rules have insufficient provisions on ad hoc arbitration and lack of practical experience in ad hoc arbitration.In September 2018,the 13th standing committee of the National People's Congress incorporated the revision of the arbitration law into its legislative plan.Under the background of the current revision of the arbitration law,it is of great significance for the improvement of China's dispute resolution mechanism and the development of arbitration to construct our country's ad hoc arbitration system and timely revise the arbitration law.The feasible plan is to further explain the provisions of "three-specific conditions" on the basis of the existing system,improve the existing arbitration rules and formulate new rules in time,so as to link ad hoc arbitration with institutional arbitration.We should give full play to the advantages of ad hoc arbitration,improve the construction of arbitrator team in our country,and enhance the consciousness of social integrity.Finally,promote the design of arbitration lawn by drawing on the experience outside China and combining with the practice in our country.