Research On Modern Commercial Arbitration System

Arbitration is the oldest, the most mature and the extensively used disputes settlement system in solving civil and commercial matters. The reason why this system is highly praised and welcomed is that it owns special characters. Due to its contractual nature, arbitration makes the parties enjoy full autonomy. Compared with litigation, arbitration owns some important characters, which litigation doesn't have, such as independence, flexibility, efficiency, and so on. However, due to its judicial factors, arbitration has the same legal effect with litigation judgments. With the integration and globalization of international economy, arbitration has become increasingly indispensable in maintaining economic development. Therefore, studying modern arbitration system will make a powerful impression on the development and promotion of economy, as well as the economic theory of empathy.In addition to the introduction, this paper is divided into nine chapters.In the introduction, this paper outlines the development of modern commercial arbitration, briefly and concisely summarizes the studying process of modern commercial arbitration system, points out the aspects of modern commercial arbitration system which need to be improved, and draws forth the significance of writing this paper, as well as the goals of this paper.ChapterⅠoutlines modern commercial arbitration system. In order to study modern commercial arbitration system, we have to move trace the origin of commercial arbitration, definite the connotation of"commercial", organize the development of commercial arbitration system, and sum up the characteristics and nature of commercial arbitration system.ChapterⅡdiscusses China's commercial arbitration and international commercial arbitration. First of all, this paper divides China's commercial arbitration system into two parts: domestic economic contractual arbitration system and foreign-related commercial arbitration system. From this perspective, the paper marshals establishment and development of China's commercial arbitration system, and inspects the present status of domestic and overseas commercial arbitration legislation. Considering the depth of study, the paper comparatively studies western countries'commercial arbitration laws, taking Sweden and the United Kingdom for example. Such kinds of comparisons are indispensable.ChapterⅢstudies the modern commercial arbitration institutions. As institutions operating commercial arbitration system, they have two forms: permanent and temporary. This paper makes a survey of foreign commercial arbitration institutions and two international commercial arbitration agencies, as well as China's two world-renowned foreign arbitral institutions.ChapterⅣexpounds five basic principles and five basic system of modern commercial arbitration system. Firstly, taking China for example, this paper studies five principles of modern commercial system, namely the principle of voluntary, on the basis of facts, and with the law providing the criterion, the independent exercise of the right to arbitration, non-public trial, and the support of supervision of court. Besides, this chapter discusses four systems of arbitration——arbitration challenge system, final system of arbitration, the system of arbitration's prescription, and preservation of property in arbitration. When analyzing and expounding the principles and systems of arbitration, the author also put forward his own view for how to improve the arbitration system.ChapterⅤdisuses the foundation of modern commercial arbitration system: the arbitration agreement. This paper makes an intensive study of arbitration agreement's legal characteristics, types, model arbitration clauses, the identification, the invalidation, and the disposal of agreement's legal effect, and the law application to the arbitration agreement. The paper, especially, pays great attention to carding"unifications theory"and"segmentation theory"in commercial arbitration agreement, with judicial interpretation and demonstration to explain it.ChapterⅥdiscusses the due process of modern commercial arbitration. Firstly of all, the paper definites the parties of commercial arbitration and participants of commercial arbitration process, studies the do's and don't of commercial arbitration agencies, intensively elaborate the procedures of commercial arbitration, such as the application, the acceptance, the response, the counterclaim and others.Chapter VII discourses commercial arbitration's judicial support and supervision. Firstly, the paper demonstrates the localization process of arbitration's judicial supervision. Secondly, the paper points out the defects of our country's systems for refusing to execute arbitration awards and cancelling arbitration awards. Finally, this paper puts forward steps to amend and improve these defects.Chapter VIII examines the recognition and enforcement of modern commercial arbitration awards. Only when the arbitration awards are recognized and enforced, can the disputes be settled in the normal economic order. We must understand the differences and interconnections between recognition and enforcement. Only recognition and enforcement of arbitration awards can achieve social functions of commercial arbitration, maintain the legitimate commercial interests of the parties, reduce the burden of courts, safeguard national sovereignty, and satisfy the need of foreign trade. This chapter, not only refers to the conditions of recognizing and enforcing domestic and overseas commercial arbitration awards, but also refers to the procedures of recognition and enforcement.Chapter IX, on the basis of previous chapters, concludes the trend of China's commercial arbitration development. First of all, the paper reveals the existing problems in China's commercial arbitration system, analyzes the reasons of these problems painstakingly, and then undoubtedly gets the basic ideas of reforming and improving current situation, finally emphasizes the value target of China's arbitration system.