Study Of International Commercial Arbitration The Parties The Right To Relief System

Arbitration is a long-history dispute resolution. At the end of the 18th century,arbitration, with the development of international commercial transactions and the increaseof international commercial disputes, was used in the field of international commerce,international commercial arbitration (ICA) different from domestic commercial arbitration(DCA) came into being and received plaudings gradually from the merchants for itsneutrality, justice, expediency and low cost and other merits. Since the 20th century, with thedevelopment of economic globalization, ICA developed and expanded largely and became acommonly used alternative dispute resolution.ICA was formed on the basis of DCA. Influenced by DCA, traditional theories of ICAhold that the parties of ICA, like the parties of DCA, choose arbitration just for resolvingtheir disputes quickly, ICA should also take efficiency as its primary value and regardefficiency as supremacy when there is conflict between efficiency and equity. All nationallegislations and international conventions on ICA establish the legal regimes of finality andlimited judicial review, which mainly carries the value of efficiency. It is no doubt that theseregimes are helpful to resolve the disputes of the parties and reduce the cost of disputeresolution and have their rationalities and attractions to some parties, but these regimes lackdue concerns of the parties' pursuance for equity and neglect the protection and redress ofthe parties of ICA. Because the volume of transactions and disputes in internationalcommerce are getting huger and huger and fearing that the award is erroneous and difficultto appeal, more and more parties of international transactions, especially those of large-scaleinternational transaction are unwilling to choose arbitration to resolve their disputes. Thisnew tendency hinders, in certain degrees, the development of ICA and reflects the defects ofthe legal systems of ICA, which have attracted attentions of foreign scholars andpractitioners of ICA,Why the parties of ICA choose arbitration, what right they have in arbitration, whetherthey need remedies when their fights in arbitration are infringed and how to redress theirrights are the main contents which this thesis studies. Except for the introductory and conclusive parts, the thesis has about 200000 words and is divided into five parts.Chapter one The rights and remedies of the parties of ICAThis part is the theoretical basis and logic beginning to expand the study on theremedies for the rights of ICAparties. There are four sections in this chapter. The first sectionsimply introduces remedies for rights and the theoretical grounds in general and indicatesthat remedying rights are deviated from the substantial rights in basic legal relations and thatrights need remedies just because rights might be infringed. Along with the logic thinking of"no right no remedy, no infringement no remedy", the second section examines the rights ofparties in ICA and the possibility to be infringed. In ICA, the parties have a series of rightstoward the arbitral institution and the arbitrators in the arbitration contract and the rights inthe basic contract with other parties; the arbitral institution and/or the arbitrator(s) mayoffend the first kind of rights, whereas erroneous arbitral awards may harm the second kindof rights. The parties have certain rights and their rights might be infringed, so their rightsshould be redressed in theory if infringed. But because traditional ICA theories assume thatthe parties who choose arbitration pursue mainly efficiency instead of equity and they do notneed remedies even if their rights are infringed, so the third section discusses fatherly thenecessity of redress from the perspective of value pursuance of the parties. This sectionfirstly introduces different ideas and theories about the value of ICA among Chinese scholarsand point out that the disagreements are caused by that the scholars haven't make clear themeaning of value, value choice and value pursuance, by that they haven't make differencebetween ICA and DCA, and by that haven't recognize the changes and developments of thevalue pursuance of the parties. Then this section discusses the real pursuance of the parties ofICA at the perspectives of aims and motives and rational economic man and reaches to thefollowing conclusions: some parties choose ICA for efficiency, some for equity and some forboth; the law should provide remedies for those who pursue equity and justice; facingdifferent value pursuance of different parties, the legislations of ICA should permit theparties choose between equity and justice and between remedy and non-remedy freely attheir own will. Because the present legal regimes of ICA take efficiency as their primaryvalue and lack flexibilities, they cannot satisfy the pursuance of the parties for equity nor satisfy the pursuance for efficiency, ICA can only provide services all-in-one-size and loosesits attractions and merits. After establishing the notion of the rights of the parties who pursuefor justice should be redressed when infringed, the last section simply explains the concept,nature and classification of remedy of the fights of ICA parties, and hold that the redressingregimes include the regime of recoursing the civil liabilities of the arbitral institution andarbitrator, the regimes of judicial review and arbitral appeal on erroneous awards. Thissection also explains the significances and basic principles of remedies for right of ICAparties.Chapter two Redress regimes of recoursing civil liabilities of arbitral institutions andarbitratorsTo recourse civil liabilities against arbitral institutions and arbitrators is to redress therights of ICA parties toward arbitral institutions and arbitrators when infringed by the latter.This chapter is divided into six sections. The first section simply introduces the arbitralliabilities and their basis and categories, pointing out that, as a kind of remedy for the rightsof ICA parties, arbitral liabilities mainly refer to the civil liabilities. This section alsoexpounds the significance of the regimes of civil liabilities of arbitral institutions andarbitrators—not only providing direct remedies for the parties when their rights areinfringed by arbitral institutions and arbitrators but also regulating and restraining in certaindegrees the acts of arbitrators, upgrading the quality and level of arbitration and reducingerroneous arbitral awards. The second section makes comparative studies theories andpractices on civil liabilities of arbitral institutions and arbitrators of different legal systemsand different countries and makes profound comments on these theories and practices. Thethesis holds that absolute immunity denies the contractual nature of ICA, the grounds cannotstand and it is not helpful to protect the rights of the parties, that unlimited liabilities ignorethe judicial nature of ICA and the status as judge of arbitrators although it is helpful toprotect the rights of the parties, so it is also unacceptable, and that limited liability or limitedliability makes balance between the above extremities and coordinates the interest of partiesand arbitrators, but also doesn't reflect the dual nature of arbitration and the dual status ofarbitrator as judge and service provider because takes the degrees of fault as the standard to determine whether the arbitrator should be liable or immune. The third section analyzes thetheoretical basis of liability and immunity of arbitrators from the dual nature of arbitrationand the dual status of arbitrator, arguing that arbitrators should be liable to the parties fortheir acts or omissions in performing their contractual duties and be immune for their acts oromissions in performing their judicial duties unless they have intentions or gross negligence,that the criteria to distinguish judicial acts from contractual acts is whether it is necessary forarbitrators to use their knowledge, skills and experience to make judgment and decision onrelative issues of the case on the ground of proofs and applicable laws. The fourth sectiondiscusses the nature and elements of the civil liability of arbitrators and the form ofundertaking civil liability. The fifth section studies the civil liability of arbitral institutions.Because arbitral institutions are only the administrator and supervisor of arbitration and donot participate in the resolving of disputes, their relations with the parties are purecontractual relation (with very few exceptions), they should not be granted with immunity.Meanwhile, with regard to the factors of the arbitral institutions—arbitrator, the duty ofarbitral institution and others, arbitral institutions should bear joint liabilities for the civilliability of arbitrators. This section pays special attentions on the effectiveness of immuneclause in the arbitration rules promulgated by arbitral institutions. The last section deals withthe procedures to recourse civil liabilities of arbitral institution and arbitrators, especiallycourt choice and choice of law.Chapter three Redress regimes of judicial review of erroneous ICA1 awardsJudicial review and arbitral internal appeal in next chapter are remedies for the partiesagainst erroneous arbitral awards, so the first section studies different forms of erroneousarbitral awards, dividing them into four categories: awards with flaws of, awards withprocedural irregularities, awards with substantial mistakes and awards against public policies.The second section compares the scope and grounds of judicial review in main countries andconcludes that most countries don't permit judicial review on the substance of arbitralawards. The third section makes a comprehensive study on the ways and effectiveness ofjudicial redress in the courts of the seat and of the country to enforce the awards. The fourthsection studies profoundly the defects of judicial review, holding that the scope of judicial review is limited and cannot satisfy the wish of those parties pursuing justice, that theeffectiveness is indeterminate, and that judicial review is incompatible with ICA in natureand destroy the merits of arbitration of neutrality, justice, expedience, economy andconfidentiality.Chapter four Redress regimes of arbitral internal appeal of erroneous ICA awardsArbitral internal appeal is a strange concept in China and seldom mentioned or studiedby Chinese scholars. Because scholars in our country all understand "finality" as "the awardis final once it is made" and regard finality as the main merit and principle of ICA, thischapter first discusses the relativity of finality, point out that finality is only a relative meritand principle of ICA, so clear the way to establish regimes of arbitral internal appeal. Thesecond section discusses various proposals to overcome the defects of judicial reviewmentioned above and concludes that the best solution is to allow the parties to select arbitralinternal appeal, fatherly explains the necessity of arbitral appeal. The third section examinesthe practices of internal appeal in international commodity arbitration, international maritimearbitration, international investment arbitration and arbitrations in other commercial arbitralinstitutions such as CPR and JAMS. On this basis, the fourth section discusses basicprinciples and detailed regimes of arbitral internal appeal. Finally, the last section discussesthe possible modes of the relations between judicial review and arbitral appeal, arguing thatthe parties should abandon seeking judicial review in principle once choosing arbitral appeal.Chapter five The redress regimes of the rights of the parties in foreign-relatedcommercial arbitration in our country and and improvementsThis chapter examines the present legal legislations of Chinese laws on redress of therights of the parties of foreign-related commercial arbitrations, discusses the defects andproblems existing in these legislations and makes some suggestions on how to improve themin accordance with the conclusions reached in above chapters.