Commercial Arbitration Research, Supervision And Restraint Mechanisms

As a universally recognized non-governmental way of settling disputes in international society, the commercial arbitration is in people's good graces for its advantages of flexibility, swiftness, economy, timeliness, confidentiality and internationality. Especially with the internationalization of today's commercial trade, the role of the commercial arbitration in the settlement of the commercial disputes becomes more and more important, thus the perfection of the arbitration institution has significant importance. Because a scientific supervision and restriction mechanism for arbitration is the key factor for safeguarding the quality of the arbitration, it is critical for the development of the arbitration system. With China's entering into WTO, the task of constructing supervision and restriction mechanism for arbitration becomes more urgent. This article puts arbitration into the system of social dispute settlement mechanism, and tries to discuss and construct the supervision and restriction mechanism for the commercial arbitration in this angle. To construct this mechanism, first thing is to discuss the nature of the commercial arbitration, because the nature and classification of arbitration has great influence on the concrete arrangement of and attitudes to the arbitration institution in a country's legal system. The author thinks the commercial arbitration has the nature of non-governmentalness and judicialness , while the non-governmentalness is its basic nature. The non-governmentalness and judicialness of the arbitration are restricted by each other and both of them influence the content of the supervision and restriction mechanism for the commercial arbitration as well as the role of each concrete supervision and restriction mechanism. The article supports this view through discussing the historical development of the commercial arbitration, the inherent relationship between the commercial arbitration and the commodity economy and the fundamental theory about the nature of the commercial arbitration.The non-governmentalness of the arbitration means autonomy, it includes the arbitration parties' autonomy and the board of arbitration's autonomy. The parties' autonomy requires that the parties' role as the subject of the procedure be fully emphasized, respected, reflected and protected, and there is no exception in the supervision and restriction mechanism. The autonomy of the board of arbitration is that the board carries out self-governance and self-restraint, and practises professional management and supervision as a non-governmental organization for settling disputes. The judicialness of the arbitration is the protection of and certain degree of interference in the arbitration by a state's public power--- the judicial power. On the one hand, it requires that the practice of the arbitration should not be contrary to the stipulations of laws, and it gives an end line for the parties' autonomy---not violating the public order (social public interests), otherwise the state's judicial power will interfere in and limit its practice; on the other hand, it fully respects and protects the parties' autonomy within the scope of the laws. The non-governmentalness of the arbitration repels the interference of judicial power in the arbitration and emphasizes the arbitration's self-restraint and self-management as well as the professionalrestraint and management, and thus it plays an important restraining role in the interference of the judicial power.The second thing is to discuss the constitution of the supervision and restriction mechanism of the commercial arbitration. The constituting factors include subject, object and content. In accordance with the stipulation of the PRC's Arbitration Law, the subject of supervision and restriction of China's commercial arbitration has the character of pluralisticalness, they include the arbitration parties, the board of arbitration, the association of arbitration and the people's courts. And there are different concrete supervision and restriction mechani...