Essay代写：Judicial supervision of arbitration－r51due

下面为大家整理一篇优秀的essay代写范文- Judicial supervision of arbitration，供大家参考学习，这篇论文讨论了仲裁的司法监督。仲裁，是指当事人各方通过自愿协商，合意将有关争议提交非司法机构的第三者居中进行审理，并作出对争议各方均有约束力的裁决的一种纠纷解决制度。作为一种独立的权力，法院给予仲裁必要的干预，特别是对仲裁实施适当的监督，是世界各国的通例。究其原因，是因为在仲裁的理论与实践中均存在构筑仲裁司法监督的基础。

Arbitration, it is to point to the parties concerned through voluntary negotiation, the agreement will be submitted for the judicial institutions concerned the dispute to a third party in the middle, and make a binding on all parties to the dispute of ruling a dispute resolution system. As a kind of independent power, the court gives the necessary intervention to the arbitration, especially the proper supervision of the arbitration, which is the general rule of all countries in the world, and China is no exception. The reason is that in the theory and practice of arbitration there is a basis for the construction of judicial supervision.

"All people who have power are prone to abuse their power", so "in the nature of things, to prevent abuse of power, power must be exercised". The arbitration includes the right of arbitration, and the right of arbitration is a kind of power, not the right, which is generally recognized. It is the reason why the arbitration is supervised. The other key issue is the right to constrain the right to arbitration. From the perspective of social practice, arbitration is a dispute resolution mechanism, and its supervision can come from all parties, such as internal supervision and industry supervision. But they all have a fatal flaw: a lack of national compulsion. By analyzing this, we can already conclude that the court's supervision of arbitration is the most effective supervision. The focus of this article is here.

Article 8 of China's arbitration law stipulates that "arbitration shall be conducted independently according to law and shall not be interfered by administrative organs, social organizations or individuals". In order to ensure the realization of this principle, article 14 further states that "the arbitration commission is independent of the administrative organ and has no affiliation with the administrative organ." There is no affiliation between the arbitration commission. These efforts, however, almost rejected by article 10, paragraph 2 of article 10: "the arbitration committee shall be prescribed in the preceding paragraph, organize relevant departments and Chambers of commerce of the people's government of unified form", which makes the arbitration committee in the beginning of the form with the strong town government color, but the reality on the basis of this go further. Not only form a fund, the use of land by the government of the arbitration commission in accordance with the institution of the standard, and many of the arbitration commission is director of the legislative affairs office by the government and the city government, director of the relevant leaders. In economically underdeveloped areas, arbitration fees are few and far between, and there is no alternative to relying on the government. The situation shows that in China's national conditions, the arbitration is not thorough, and can not be thorough. Government support for arbitration institution of these make people have to doubt the arbitration neutrality, therefore, asked the court for arbitration agency to oversee is imperative, or nature of the independence of the arbitration will be administrative overhead, and in the town government bodies into administrative agency independent kingdom, deviated from the intention of the arbitration.

In addition to the above two factors, the limitation of the arbitration system should not be ignored.

"Or to lay off or review" and "a final ruling" system. Our country "arbitration law" article 5 and article 9 rules "and" cut or trial, "" a ruling system, refers to the parties to the dispute after a dispute, or through the way of arbitration, or resolved through litigation, but once the parties signed the arbitration agreement or an arbitration clause is ruled out the jurisdiction of the courts, only the dispute to the arbitration commission for arbitration, the arbitration tribunal to dispute is formed after the exercise of the arbitration award is final and the parties must accept. However, the arbitral tribunal is composed of arbitrators, and inevitably will make mistakes in the work of arbitration. It is obviously contrary to the value objective of the impartiality of the arbitral organization to accept the arbitration organization's own mistakes. Therefore, judicial supervision is the system guarantee of the arbitration justice.

The arbitration agreement is the foundation of arbitration institutions to achieve arbitration, is the only legal basis, out of the jurisdiction of the court is the core member of the arbitration agreement, therefore, if the parties due to the subjective understanding mistakes and signed the arbitration agreement will cause irreparable loss, may also destroys the market economic order, believe that this is the result of people don't want to see. The court's supervision of arbitration can remedy this.

Openness means supervision. Article 40 of the arbitration law stipulates: "arbitration shall not be conducted in public. If the parties' agreement is open, it may be made public, except for the state secrets. Visible, as the principle, to arbitration in the closed to open for the exception, this makes the arbitration commission is like a closed system, without the participation of the masses and the media, there would be no social supervision, its impartiality must doubt and challenge, the arbitration of fair value is likely to get implemented. Therefore, it will be helpful to close this defect by giving the court a certain judicial supervision right after the arbitration.

The arbitration law stipulates the selection system of arbitration, and the parties can choose the arbitrator who thinks they are just. However, in practice, the arbitrators are not full-time, and the parties can not choose their own satisfied arbitrators. The chief arbitrator is even more so. The presiding arbitrator has the final decision of the arbitration, the arbitration commission, the director of a big impact on the determination of the presiding arbitrator, and as I mentioned earlier, chairman of the committee shall be held by a lot of administrative personnel, the independence of the arbitrator is not here, together with some of the arbitrators selected without strict procedures, its quality also worrying.

It is only a beginning to clarify the necessity of judicial supervision, and more importantly, to determine the reasonable scope of judicial supervision. Because if we insist on supervision, we will expand the scope of supervision indefinitely, which will impact the independence of arbitration and hinder the development of arbitration system. The judicial supervision of arbitration is still in a state of confusion.

The main contents of the current arbitration judicial supervision mechanism in China can be summarized into three aspects: first, the validity of the arbitration agreement; The second is the "revocation of the award"; Third, "no implementation". Specifically, the relevant provisions of arbitration law in China's arbitration law are as follows:

The people's court shall have the power to review the validity of the arbitration agreement and control the jurisdiction of the arbitration. Article 20 of the arbitration law stipulates: "if the parties have any objection to the validity of the arbitration agreement, they may request the arbitration commission to make a decision or request the people's court to make a ruling. "If one party requests the arbitration commission to make a ruling, the other party requests the people's court to make a ruling, and the people's court shall order it."

The people's court shall have the power to cancel the arbitration award. "Arbitration law" article 58 and article 70 of this law respectively on the domestic and foreign-related arbitration award of the arbitration shall be revoked, several kinds of circumstances, can see, the "arbitration law" in the domestic and foreign-related arbitration ruling to revoke the reason is there is a difference, in the award of the arbitration shall be revoked, the situation to the domestic review of entity, but not for to foreign.

The people's court shall have the right not to enforce the arbitration award. Based on the investigation to the current arbitration judicial supervision content, we can find that arbitration judicial supervision in our country there are the following features: for the domestic arbitration in our country and foreign trading affairs arbitration judicial surveillance, practice the "are" the "double track"; The people's court for the cancellation of the domestic arbitration award and the refusal to enforce more strictly, it is not only limited to the drawbacks of program content, but also to the physical aspects of the "wrong" shall have the right to review, and accordingly, the people's court for foreign-related arbitration award "undo" and "no" are generally not including entity.

Although in the earliest recorded in the UK, the arbitration court of arbitration of the intervention is very strict, but with the development of arbitration system, arbitration in the judicial intervention or is undergoing significant changes have occurred, thus forming a kind of developing trend, and this trend will continue.

Overall, this is a trend toward reducing the court's judicial intervention, in the affirmative arbitration, on the basis of independent, narrowing the scope of the court's intervention and extent, increase the support of the court of arbitration. This trend is first reflected in the international arbitration rules. Such as the New York convention of 1958, its core is the various states parties must admit and execute foreign arbitration award, and only in the parties that arbitration procedures by the lack of cases, the local court can refuse to acknowledge and of board; The international commercial arbitration model law of the United Nations and the international chamber of commerce arbitration rules have excluded the court's intervention to the maximum extent.

From the perspective of the two law systems, the Anglo-American law countries tend to give the court greater judicial participation, while the continental law system strictly limits the judicial supervision of the court. After the change of international arbitration rules, all countries have revised the judicial supervision of arbitration. The general trend is to reduce the judicial interference of the court and give arbitration more independent space.

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