Research On The Problems And Countermeasures Of The Construction Of Interim Arbitration System

The newly published Arbitration Law of the People’s Republic of China(Amendment)(Draft for Comment)introduces temporary arbitration in the foreign part,which undoubtedly shows the inevitability of introducing temporary arbitration system in the Arbitration Law.Before the proposed revision of the Arbitration Law,the Supreme People’s Court and local governments had already tried to loosen the restrictions on temporary arbitration.The Opinions of the Supreme People’s Court on Providing Judicial Guarantee for the Construction of Pilot Free Trade Zones show support for temporary arbitration.The Hengqin Pilot Free Trade Zone’s Provisional Arbitration Rules are the first to use the concept of provisional arbitration.This is the first arbitration rule specifically designed for the implementation of ad hoc arbitration in FTZS.The Internet Union of China issued the Rules for the Connection between Provisional Arbitration and Institutional Arbitration of the Internet Arbitration Union of China,which provides a way for the temporary agencies to transform into institutional arbitration and obtain enforcement power.Shanghai Silver Research Company successfully settled the "First provisional arbitration Case" in 2017.The comprehensive introduction of provisional arbitration has been the general trend.Three methods of literature analysis,historical analysis and comparative research are used in this thesis.By combing the theoretical research and practical experience of temporary arbitration in recent years among the academic and practical circles,we can see the main problem faced by the introduction of temporary arbitration system,and make targeted inquiry to solve the problem,which is the goal of this thesis.In our country,the temporary arbitration system should be constructed systematically at the legislative level,and the four aspects cannot be avoided: first,the compatibility of the Arbitration Law and the provisional arbitration system,especially how the existing institutional arbitration system and the provisional arbitration system can be legislatively connected.The second is the conflict between the temporary arbitration tribunal and the third party.The management system of temporary arbitration is independent of institutional arbitration,which requires high autonomy,so judicial supervision is particularly important.For example,how to deal with the rejection of judicial intervention by the temporary arbitral tribunal by the exercise of the judicial authority to cancel the arbitral award and the judicial confirmation of the arbitration process poses a major challenge to the provisional arbitration system.Third,the exclusion of the provisional arbitration in our institutional arbitration procedure.A distinctive feature of China’s institution-oriented arbitration system is the dependency of the arbitral tribunal on the institution.The provisional arbitration rules do not provide enough guarantee for the autonomy of the arbitral tribunal.It is an urgent problem to reasonably determine the intervention boundary of the assisting institutions and avoid the excessive dependence of the arbitral tribunal on the arbitral tribunal.Fourth,the lack of social environment for temporary arbitration brings challenges to the introduction of the system,such as the rejection of temporary arbitration in Chinese institutional arbitration procedures,the narrow selection of arbitrators,and the incomplete social credit system.Accordingly,the targeted suggestions mainly include: the gradual introduction of provisional arbitration through the authorization of legislation,supplemented by exemplary rules,to facilitate the choice of the parties;The scope and limits of institutional and judicial intervention in provisional arbitration should be clarified,and the arbitral tribunal should take the lead and be incorporated into the industrial supervision system.Open the arbitrator roster and introduce high-quality talents,pay attention to the establishment of social integrity system to create appropriate external conditithe introduction of the system,such as the rejection of temporary arbitration ons for the introduction of temporary arbitration;Eliminate the conflict between institutional arbitration and provisional arbitration,and let institutions actively participate in the construction process of provisional arbitration system.