Research On Fundamental Legal Issues Concerning Arbitration Jurisdiction

Ever since the enactment of"The Arbitration Law of the People's Republic of China", the arbitration institution in our country has made a huge progress. Within a short twelve years, a complete arbitration system which plays an important role in the international arbitration system has emerged. However, loopholes are still found in the arbitration institution in our country as a result of complex reasons, and it needs constantly amending. One important part of this institution is the arbitration jurisdiction.Arbitration jurisdiction is a power that the arbitral tribunal in accordance with the willing of the parties or the relevant provisions of law governs disputes between parties, and then hears the case and gives an award and/or some other binding way to settle the disputes. Briefly speaking, arbitration jurisdiction is the power that the arbitration commission or tribunal governs the arbitration cases. Arbitration jurisdiction is the primary issue of the arbitration institution, which determines whether the arbitral tribunal may accept the application by the parties, hear the case and give the award, and whether the award given by the tribunal is valid and may be enforced. Obviously, this issue is concerned with the fundamental interests of the parties. In the meanwhile, a valid arbitration jurisdiction can exclude the jurisdiction of the people's court, thus the choices by the parties to settle the disputes are limited. In a word, arbitration jurisdiction sets different rights/powers and duties for parties to the arbitration, arbitration commission and tribunal, and the people's court.The thesis starts with the basic concept of arbitration jurisdiction, studies the theories linking with the practice, resorts to the domestic and foreign academic study results and practical experiences, clarifies several basic legal issues regarding arbitration jurisdiction, and give the opinions on the arbitration jurisdiction basic theory. The thesis is divided into four parts:The first part is a general discussion on arbitration jurisdiction. The author primarily defines the legal definition of arbitration jurisdiction, illustrating the significant meaning of the arbitration jurisdiction to the whole arbitration institution. Later on it distinguishes the arbitration jurisdiction from other relevant legal concepts and compares the arbitration jurisdiction with the judicial jurisdiction. At last, it provides three factors to define arbitration jurisdiction: willing for arbitration, parties to arbitration and the object of arbitration.The second part focuses on the way of obtaining of the arbitration jurisdiction: arbitration agreement. Herein the relationship between obtaining the arbitration jurisdiction and the arbitration agreement is a clue, across with the procedural and substantial requirements of the arbitration jurisdiction for the arbitration agreements are discussed. Then the thesis goes particularly into the independence of arbitration and its influence on the arbitration jurisdiction.The third part analyzes disputes and arbitration jurisdiction. In this part, the scope of the disputes which the arbitration jurisdiction can be generated from is mainly studied. It analyzes at all length several factors affecting the scope of the arbitration jurisdiction and the general standards for determining the scope of the arbitration jurisdiction. Meanwhile, some arbitral cases are discussed further.The forth part tries to ascertain the arbitration jurisdiction: objection to the jurisdiction and its cognizance. In this part, the arbitration jurisdiction elimination is mostly discussed, including the requirements for the applying parts, term and reasons, and the authority entitled to review the objection. The thesis educes the principle of the arbitral tribunal's self-adjudicating jurisdiction which is an important part of the arbitration jurisdiction institution and the product of the whole arbitration institution's constant development from the discussions on the cognizance authority. The author argues that the arbitration jurisdiction institution should develop based on this principle.