A Study On The Legal Framework Of Arbitrator’s Liabilities

Although arbitration is considered a production of party autonomy, arbitrators, being major participant in arbitrations, are playing crucial role. Being the one carrying out the power of arbitration, arbitrators have been put under the concentration of the studies of their rights and obligations as well as their liabilities and the immunity. The legal status of arbitrators is the origin of the legal framework of arbitrators’legal liabilities while the liabilities and the immunity are the final outcome of the implementation of the legal framework.This thesis first of all studies the legal status of arbitrators, in particular, the legal relationship between arbitrators and arbitrants and establishes a theoretical model of the legal status of arbitrators which is the basis of the legal framework of arbitrator’s liabilities. Then it studies the present theories and practice and establishes a theoretical model on the legal framework of arbitrator’s liabilities. Based on the above, this thesis studies the legal status and the legal framework of arbitrator’s liabilities in China. It, on the one hand explains the concerned current situation in China by applying the above models, and, on the other, makes proposals on the structuring of the legal framework of arbitrator’s liabilities in China, including the immunity and the insurance.Chapter One explains the purpose and the methods of the study, as well as summarizes the past studies on this topic. The purpose of this study is to understand the legal status of arbitrators and makes proposals on the structuring of the legal framework of arbitrator’s liabilities in China. The methods of the study are comparative study and characterization. In accordance with the summery of the past studies, scholars have been paying great attention to this topic but facing a great controversy on the legal relationship between arbitrators on the one side and arbitrants on the other. There is no agreement either on the liabilities or the immunity. Starting from ad hoc arbitration, the simplest version of arbitration, Chapter Two studies the legal status of arbitrators by applying the methods of comparative study and characterization.England representing the common law countries is studied. This thesis studies the theories and practice of the legal relationship between arbitrators and arbitrants. It is generally agreed in England that the relationship is contractual, based on which this thesis studies law of obligations, in particular, law of contract, law of agency and law of arbitration as well as the remedies available to arbitrators and arbitrants in case of the breach.Germany representing the civil law countries is studied. This thesis studies the theories and practice of the legal relationship between arbitrators and arbitrants. It is generally agreed in Germany that the relationship is contractual, namely,"Arbitrator’s Contract", based on which this thesis studies law of obligations, in particular, law of contract, law of agency and law of arbitration as well as the remedies available to arbitrators and arbitrants in case of the breach.Studying ad hoc arbitration, this thesis argues that legal and valid arbitration as well as appropriate financial interest are the two major concerns in arbitrations. Based on the same, the legal relationship between arbitrators on the one side and arbitrants on the other is of two aspects, namely the aspect based on status, the subject matter of which is to make a decision in the arbitration, and the aspect based on contract, the subject matter of which is to provide arbitration service.Arbitration power comes from judicial power and is composed of the power to make decision and the so beyond. The former is the power of arbitrators to make decision, which is comparable of the power to make judgment in litigation. The latter includes the activities performed by arbitrators during arbitration, including reading the legal documents submitted by the arbitrants, hearing the case, issuing arbitral awards, etc. as well as receiving remuneration from arbitrants, which is comparable of what conducted by judges in litigations as well as that the judges are paid for such public service by tax-payers.Chapter Three divides liabilities of arbitrators into three categories, i.e. disciplinary liabilities, civil liabilities and criminal liabilities and studies these liabilities one by one. This thesis particularly studies civil liabilities, the most controversial category, by carrying out comparative study on its history, it theories and practice in different jurisdictions as well as the liabilities of judges.Based on the status-contract model argued in Chapter Two, this thesis establishes a model of arbitrator’s liabilities, i.e. arbitrator enjoys immunity of civil liabilities when carrying out the power of making decision but does not enjoy immunity of civil liabilities when performing the contractual obligations under the arbitration service contract between it and the arbitrants unless otherwise agreed or exempted under law.Chapter Four studies the current legal framework of arbitrator’s liabilities and concludes that practice in terms of disciplinary liabilities is somewhat satisfactory while that of the criminal ones needs to be improved. The legislation and practice in terms of civil liabilities are almost nothing. This thesis argues that it is rooted in the understanding of arbitration and the system in which arbitration is run in China. It is proposed that consensus be reached on the legal relationship between arbitrators on the one side and arbitrants on the other and the running of the system be improved to facilitate the interest of arbitrators and arbitrants in legal and valid arbitration as well as appropriate financial interest.Chapter Five studies the legal relationships among arbitrators, arbitrants and arbitral institutions in China and tests the adaptability of the models suggested above in the legal environment in China. It is proposed that the legal framework of arbitrator’s disciplinary liabilities be perfected, that of arbitrator’s criminal liabilities be restructured, and that of arbitrator’s civil liabilities and the immunity be designed based on the above suggested models. It is further proposed that the insurance of professional liabilities of arbitrators be designed and provided to cover the risks and to make sure of the implementation of the legal framework of arbitrator’s liabilities.