Research On Non-judicial Supervision Over Commercial Arbitration

The judicial supervision over commercial arbitration, and the procedural and substantive aspects of the supervision in particular, have been under discussion and study for a long period. This carries out its analysis of the supervision over commercial arbitration from a different angle, however, with its focus on the Non-judicial supervision over commercial arbitration. The practice of China International Economic and Trade Arbitration Commission (CIETAC) has been taken as the very example for explanation of the Non-judicial supervision in this dissertation, which is based on three aspects, i.e., its typical role in Chain's arbitration practice as the first arbitration body in this country, its complete set of rules and system for the functioning of non-judicial supervision and its well established reputation and influence in the international stage of commercial arbitration. After general introduction of several opinion on the judicial supervision. This dissertation analyses various elements involved in the non-judicial supervision, such as parties to arbitration, arbitration association, consulting committee of experts affiliate to arbitration institution, secretary general of arbitration institution, staff members of arbitration institution undertaking award reviewing, arbitrators and society, etc., in order to figure out the reasonableness of the existence of non-judicial supervision and the disadvantages thereof at the present stage, where more attention and improvements are deserved. The dissertation then has an insight into the valuation and the culture of arbitration beyond the supervision through commentary on the non-judicial supervision, and comparison between the legal system and practice of arbitration in China and that in other countries where commercial arbitration is rather developed. The general valuation of supervision and the unique aspect in the valuation of supervision over arbitration will be analyzed respective, as well as the general definition of culture and the particularity in the culture of law and arbitration. The characteristics of the arbitral culture will be construed against the general legal culture, focusing on three points, i.e. the principle of free choice for parties' Autonomy of Will, the principle of the Close-door Trial for protection of good reputation, and the principle of One Trial, Final Trial for guarantee of high efficiency in time consuming. In addition to the non-judicial supervision, this dissertation also summarized the present judicial supervision of the domestic and forging-related arbitration in China as well as the judicial supervision in the Arbitration Institute of the Stockholm Chamber of Commerce(AISCC), the London Court of Arbitration(LCA) and American Arbitration Association(AAA).A comparative methodology is adopted for explanation of the legislative trends and practice of modern arbitration with regard to the development of the commercial arbitration. Specially, general introduction of the law of aspects of the non-judicial supervision over the China commercial arbitration, the judicial explanation of the highest court and arbitration rules of CIETAC. It has drawn the law of picture of Chinese non-judicial supervision. Under this condition, with regard to the non- judicial supervision regulation of the ICC Arbitration Rules will be analyzed and affirmed. In conclusion of this dissertation, specific suggestion on the amendment of Chinese arbitration law and of the provisions on non-judicial supervision in particular, would be brought forward by the author, that means the amendment of China arbitration law must be adapted for the rules of the non-judicial supervision over commercial arbitration, such as UNCITRAL model law, ICC of rules, LISCC, LCA, AAA. It indicates the internationalization, regulation, that means admit a lot of practices of the non-judicial supervision at same time it will set up the regulations in details. In accordance with the regulations the non-judicial supervision over commercial arbitration will d...