Dissertation On Commodity Arbitration And Its Enlightenment On Chinese Arbitration

With the development of the market economy of China, natures of economic and trading disputes tend to be varied and specialized. Therefore, it is necessary to establish the diversified and multi-level dispute resolution system to satisfy different market entities in settling economic and trading disputes.In international commercial relations, the arbitration is the primary choice of parties in dispute resolutions.The unique system of trade association arbitration has been set up from long-term practices in such countries of UK and the USA, especially the internal arbitration system of large-scaled commodity trade association (hereinafter referred to as"the commodity arbitration"). The commodity arbitration system, with its outstanding features, which was established in the background of the autonomy of trade associations to settle the internal disputes of associations, due to characteristics and advantages of the autonomy of trade associations, reflects advantages of arbitrations in settling disputes effectively and professionally.In a broad sense, the internal arbitration service provided by any kind of trade organization or association to resolve disputes arising between its members can be classified as the trade association arbitration. However, the research of the dissertation only focuses on the arbitration system in trade associations engaged in the commodity trade, excluding arbitrations in other kinds of trade associations. Such industrial arbitrations as the construction arbitration, the financial arbitration, the securities arbitration and the sport arbitration will not be discussed in the dissertation.At the beginning of the research, the author made plenty of preparations by collecting various materials, including bibliographies in Chinese and English, academic periodicals, LexisNexis Legal Database, Westlaw Legal Database and information on official websites of relevant trade associations in UK and the USA, apart from which, the author consulted Professor Graham Perry, an expert on the commodity arbitration, on related issues and wrote to trade associations such as GAFTA and RTAE for materials on their commodity arbitrations, including latest arbitration rules and annual statistics of cases by arbitration. As few materials on trade association arbitrations have been publicly published, the aforementioned first-hand information from overseas experts and trade associations is greatly helpful in the author's research and dissertation-writing.The dissertation starts with the fundamental theories of the trade association arbitration, focusing on the autonomy of trade associations, illustrates in details the definitions, the history, the characteristics of the arbitration procedures, the interaction between the autonomy and the arbitration of trade associations as well as enlightenment and functions of the commodity arbitration in diversified dispute resolution system in China.The dissertation is mainly divided into the following parts:1. Fundamental theories of the commodity arbitration;2. Procedural theories and practices of the commodity arbitration;3. Relationships between the autonomy of the trade association and the arbitration.4. Enlightenment and functions in developing the multi-level dispute resolution system as well as approaches and strategies in establishing the trade association system in China.The first part of the dissertation conducts an overall analysis and comparison on the definition, the nature and the characteristics of the commodity arbitration, and then illustrates the three historic stages of the development of the commodity arbitration system as well as the status quo of the international commodity arbitration at present. The author employs the comparative method to compare and analyze various opinions from the world of international arbitration about definitions and categories of the arbitration, the characteristics of the commodity arbitration and the differences between the commodity arbitration and the trade association arbitration of China. On the history and the status quo of the commodity arbitration, the author mainly discusses the history and practices of the commodity arbitration of UK, with the history and practices of the commodity arbitration of the USA as supplements.The second part of the dissertation takes the arbitration practices of principal commodity trade associations of UK as examples to analyze systematically arbitrators'qualities and qualifications, general features of the arbitration procedures, the consolidated arbitration and the concurrent hearing, the appealing procedures and the internal supervision system of the execution of arbitral awards. The issue on arbitrators'qualities and qualifications includes arbitrator's industrial professionalism, conflicts between this kind of professionalism and independence of arbitrators and procedures of appointing arbitrators. General features of the arbitration procedures involve features of time limits of applying for arbitrations and features of the combination of general and special procedures. The issue on the consolidated arbitration and the concurrent hearing is on the consolidation of arbitrations by the string arbitration in the quality and/or condition arbitration and on legal effects of corresponding arbitral awards to bind all parties in the string of contracts. On the issue of appealing, the author analyzes and compares differences between the internal appealing procedures of arbitration and the judicial appealing procedures, the characteristics of the internal appealing procedures of arbitration and the special appealing procedures in the string arbitration. The part on the internal supervision measures discusses forms, results and reasons of the internal supervision measures.The third part of the dissertation illustrates the relationship between the autonomy of trade associations and the arbitration. The author endeavors to expound on the relationship between the trade association arbitration and the autonomy of trade associations, including on influences and functions by the autonomy on the trade association system, especially on functions and deep-rooted reasons of the autonomy of trade associations on forming those typical arbitration procedures representing the characteristics of the trade association arbitration. Meanwhile, the author tries to explain, through analyzing the formulation and application of trading rules and standard contracts, functions of the trade association arbitration on forming industrial practice laws. It is also discussed in this part whether it is legal for trade associations to carry out arbitrations.The fourth part of the dissertation mainly illustrates functions of the commodity arbitration system in promoting diversified dispute resolution system of China and suggestions on approaches and strategies of developing the trade association arbitration in China are raised in this part as well, including necessities and legal conditions to establish the arbitration system in trade associations of China, the direction of the development of the trade association arbitration of China and approaches for the arbitration institutions of China to innovate arbitration procedures. Two approaches for China to develop the trade association arbitration are the diversification of arbitration institutions and the specification and industrialization of arbitration institutions. Meanwhile, suggestions to arbitration institutions on innovating and perfecting arbitration procedures are put forward as well.Based on the aforementioned research, the author reaches the following conclusions of the dissertation:The commodity arbitration is an independent dispute resolution system in the background of the autonomy of trade associations, differing greatly from the common commercial arbitration system, which is the essence of the commodity arbitration system. Distinctive arbitration practices emerge because of the autonomy of trade associations. The commodity arbitration is indispensable from trade associations and their autonomy. In trade associations with the autonomy as one of their features, mutual influences between standard contracts, trading practices and the arbitration as a method to settle disputes finally lead to an independent positive circle of legal services of trade associations, which can successfully resolve disputes between members within trade associations relying on the autonomy and then guarantees the balance and stability of the trading relationship between members of trade associations. Historically, the commodity arbitration system to resolve internal disputes by the autonomy of trade associations complied with national laws. UK was the first country that permits the trade association arbitration system by legislation. That voluntary practices by merchants were eventually permitted by laws demonstrates that the country supports the trade association arbitration, which is in compliance with requirements of national laws and the developing direction of the dispute resolution system. The trade association system shall be permitted and promoted formally and legally in China.The trade association arbitration is one of highly-effective methods proved by practices in the diversified dispute resolution system. China needs a variety of arbitration practices and diversified dispute resolution system. The trade association arbitration is one of the directions of the development of the arbitration system in China. The trade association arbitration shall develop in the following two directions: to set up gradually internal arbitration institutions within trade associations and trade association arbitration centers within present arbitration institutions.Legislative barriers hinder the establishment of arbitration institutions in trade associations. The establishment of such arbitration institutions can be realized by amending the Arbitration Law or other special regulations, which is a topic that needs people of law carry out further researches.Moreover, it is necessary for arbitration institutions of China to perfect and innovate their arbitration techniques on the basis of the development of the arbitration practices. Positive practices of the commodity arbitration system of other countries can be adopted for reference, in which creative arbitration ideas and methods can be explored.The dissertation contains 13 chapters.Chapter I is the foreword, generalizing backgrounds of the choice of the topic, the core and innovation of the illustration and values of the research.Chapters II-III are fundamental theories of the topic, illustrating the general definition, characteristics, the history and the status quo of the commodity arbitration.Chapters IV-VII are the essence and the penetrated illustration of the aforementioned theories, among which Chapters V-VI discuss theories and practices of procedures of the commodity arbitration and Chapters VII on mutual influences between the autonomy of trade associations and the arbitration.Chapter VIII is on the enlightenment and suggestions.