Cross-strait Arbitration System Is A Comparative Study

It can be traced back early to the 5th century B.C. for arbitration to be used as a way to solve a dispute. Although there was the concept of arbitration in the ancient Greek and ancient Roman laws, it was only restricted to the self-discipline of industries. The use of arbitration was not common until after World War II when the world communication and international economic exchange were getting more and more prosperous and frequent gradually. As the international trade turned more complicated and professional, the international commercial disputes increased and got complicated accordingly. With the local social and economic development in various countries, there was an "explosion of arbitration." People searched for alternative solutions other than the original arbitration system. Thus, arbitration has a breakthrough development. Due to the favorable conditions of arbitration, such as secrecy, professionalism, internationalization and prevention of litigation in another place and stabilization of jurisdiction, arbitration becomes the most important alternative way of solving dispute. As from International Convention on the Recognition and Enforcement of Foreign Arbitral Awards was signed in 1958 to Aug. 1998, there were 145 countries and regions recognizing the arbitral awards, thus solving the problems concerning the application boundary of international jurisdiction and substantive law, international judicial assistance, and the effects of dispute solving, etc., and making arbitration system have more internationalized superiorities and develop more prosperously. Since arbitration system is a system which solves the disputes of private law based on the autonomy principle of private law, it is of no sovereignty or no political nature. To avoid the dispute of two Chinas or two systems in one China, etc., arbitration system is really the best means to solve the trade disputes happened to the people of the two continents by the Strait.Arbitration agreement, or the parties' subsidiarity principle, is the foundation of arbitration system. Without the parties' subsidiarity principle, arbitration does not exist. Over these principles, the perception of Arbitration Law of Two Continents by the Strait is not different at all. However, the current economic situations of the two continents by the Strait are different since the Mainland China is marching from planned economy towards market economy, and the economy of Taiwan has long entered market economy, and is marching towards internationalization and liberalization. Therefore, when the Mainland China formulated Arbitration Law in 1994 and Taiwan revised Arbitration Lawin 1998, the thinking directions of these two continents are different over the problem of how to realize the parties' subsidiarity principle. The Arbitration Law of the Mainland China adopts the way of institution arbitration, emphasizing the arbitral institute's supervision and management mechanisms over the arbitration procedures. From the formation of arbitration court to the making of a judgment, the arbitration institution is involved. In this way, there will not be any unnecessary abuses caused by any uncontrollable events happened during the transition period to affect the economic development. The Arbitration Law of Taiwan adopts a combination of both institute arbitration and ad hoc arbitration, which meets the international trend and has more positive meaning to internationalization.This research paper takes the parties' subsidiarity principle as the basic structure, and makes a series of comprehensive comparative studies of the key conditions of arbitration agreement, qualifications of arbitrator, selection of arbitrator, justice and evasion of arbitrator, arbitration procedures, execution of arbitrated judgment (verdict), annulment of arbitrated judgment, foreign arbitration (including foreign countries involved) judgment, sub-provisions, etc. between the two continents, by taking their Arbitration Laws and the relevant arbitration regulations, their codes of civil procedures, and Two...