Commercial Arbitration's Nature As A Professional Service

In China, commercial arbitration has long been regarded as one kind of quasi-judicial activity, with its establishment and development having a strong administrative character and being restricted in many ways. As a matter of fact, commercial arbitration is a remedy for business dealings and a means of dispute resolution whereby the parties resolve their disputes with their own efforts. In essence, commercial arbitration is a special professional service and falls within the category and sector of legal service in a market economy.The author holds that the relationship between arbitrators/arbitration institutions and disputing parties is that of service provider and service receiver, the service being commercial arbitration. From a legal viewpoint, there exists a commercial arbitration service contract in this relationship, which differs in the parties, formation and contents, as compared with other contracts. The commercial arbitration service contract is based on the arbitration agreement between the disputing parties, but it is different from the arbitration agreement itself.The author is of the view that commercial arbitration service should respect the autonomy of the disputing parties and follow the law ofthe market economy. Based thereon, Chinese Arbitration Law should amended and perfected in the following respects:1. Any direct management by administrative agencies or any administrative interference should be abolished;2. Any restriction on the disputing parties' free choice of the service provider should be eradicated and ad hoc arbitration be recognized;3. The organization of arbitration institutions and their operations should meet the needs and rules of the market economy;4. In institutional arbitration, the arbitration tribunal should be vested with the power to rule on its own jurisdiction;5. The mandatory panel of arbitrators should be replaced with a recommended one;6. The arbitration fee should be divided into administrative fee of the arbitration institution and arbitrators' remuneration and this should be made clear in the arbitration rules;7. A liability or compensation system should be established for commercial arbitration service.The author also holds that commercial arbitration is governed as a service trade under the WTO. With the improvement of Chinese socialist market economy, its arbitration will face the question of opening up to overseas competition.