| Re-arbitration is a flexible and useful institution, whose idea of efficiency, fairness and party-autonomy are consistent with the tendency of respecting and supporting arbitration. China has also stipulated re-arbitration system. However, the articles of re-arbitration are too abstract, which leads to a series problems when courts use the system in practice, and the institutional advanteges cannot be developed effectively. Therefore, in order to develop the instutional advantage at maximum, a series of legal issues need to be clarified, and then improve the system in various aspects. This dissertation discusses systemic value in theory and applicable circumstance, start body, trial subject, scope of trial and legal consequence in systemic design.The first chapter discusses the definition and nature of re-arbitration. Re-arbitration refers to the institution that when one party challenges the award, after review the award has defects which can be revised by re-arbitration, remand to the tribunal for re-arbitration. Re-arbitration started in England and was stipulated in 1889 English arbitration earliest. According to the relevant articles, the court may from time to time remit to the arbitrators for reconsideration in whole or in part. However, re-arbitration based on the idea of supporting arbitration was stipulated in UNCITRAL Model law in 1985. Thus, the institutional idea of the re-arbitration when it originated is justice’s alert and unfriendly to arbitration, which gradually develops to be supportive and promoting to arbitration. There are three system patterns of re-arbitration around the world. The first pattern is to be applied with priority as a separate relief system. To be specific, re-arbitration is not attached to the setting aside system, and it is paralleled with setting aisde system and declaration of arbitral award invalid. Besides, the court has the obligation of considering applying re-arbitration with priority. The representative is the United Kingdom. The second pattern is the alternative system of setting aside the award. To be specific, re-arbitration is attached to setting aside system and it is not a separate relief measure, i.e., when a party applies to set aside the award, when appropriate, use re-arbitation. The representative is China and UNCITRAL Model Law on International Commercial Arbitration. The third pattern is the relief system after the award is set aside and the representative is Germany and the United States. Setting aside arbitral awards cannot lead to an invalid arbitration agreement. The reasons are as follows. First, the arbitration agreement is entered into by private persons, so the reasons of becoming invalid do not include the public power of setting aside. Second, setting aside the arbitral award would make the dispute return to unsettled situation. To be specific, return to before applying to arbitration, instead of before entering to the arbitration agreement. Court’s setting aside the award makes the arbitral award invalid, instead of denying the effect of the arbitration agreement. Therefore, after the court sets aside the award, the arbitration agreement is still valid. The nature of re-arbitration is dual, i.e., judicial supervision and judicial relief, which reflects minimum supervision and maximum support from justice towards arbitration. Re-arbitration is one form of judicial supervision by the court to the arbitral award, the same as setting aside award and non-enforcement of the award, in order to guarantee the fairness of arbitration. Re-arbitration has its own particularity. Re-arbitration’s degree of judicial supervision is less than setting aside the award and non-enforcement of the award. Setting aside the award denies the effect of the award, and non-enforcement of the award denies the executive force of the award. These two forms challenge the finality of the award. Re-arbitration is applied only when the court finds some defects in the award which can be remedied by the tribunal, which would maintain the finality and authority of the award. Moreover, in many coutries, the commence of re-arbitration is in the premise of a party’s application, instead of starting by the court ex officio. Therefore, the judicial supervision in re-arbitration is relatively limited, which reflects minimum supervision and is helpful to the development of commercial arbitration. Re-arbitration has two features as a judicial relief system. First, re-arbitraiton remedies its defects by the tribunal itself, and the dispute is settled by the arbitral tribunal finally. Second, re-arbitration remedies the defects effectively, which conforms to the quick efficiency value and the expectation of parties pursuiting finality. Re-arbitration has some similarity with relevant systems, especially the remand for retrial and civil retrial in the civil procedure law. On the one hand, the differences are significant; therefore, re-arbitration cannot copy the institutional design of remand for retrial and civil retrial simply. On the other hand, due to the common procedural idea between arbitration and civil procedural law, some institutional designs can be used for reference.The second chapter discusses the value of re-arbitration. Value refers to the emphasis when choosing the value objective, which is an arrangement of various value objectives. The value of re-arbitration is the goal to be reached by using the re-arbitration. It includes two meanings, one is that re-arbitration contains how many kinds of values; the other is that when values conflicts, what is the order. The research on the value of law is the basis of legal research, whose significances are as follows. First, the trait of law determines the research on the value of law. Second, research on the value of law helps to make good law. Third, research on the value of law is good to value judgement in justice and to make fair judgement. One value of re-arbitration is efficiency, which reflects in three aspects. First, re-arbitration conserves arbitration resource. The tribunal makes up for defects instead of setting aside the award directly and finishing the whole procedure, which saves arbitration resource. Second, re-arbitration resolves disputes efficiently. Re-arbitration makes up for defects rather than conduct a full hearing again, which is quiet efficient. Third, re-arbitration maintains the finality of arbitration. Re-arbitration only provides the tribunal with the opportunity of fixing flaws by itself, and there is no need for the parties to reach a second arbitration agreement and to hear the dispute a second time, which is the maintenance of the finality of arbitration. Another value of re-arbitration is fairness, which mainly has three meanings. First, fairness of arbitration makes the parties be more willing to choose the arbitration system. Second, fairness of arbitration has the parties obey the award and perform duties. Third, fairness of arbitration plays a positive guiding role in the public. The third value of re-arbitration is party-autonomy. The dispute is finally resolved by arbitration without the intervention from the court, which respects the willing of the parties choosing arbitration. The order of the systematic value of re-arbitration means when the values conflicts, which value shall prevail. The efficiency and fairness of re-arbitration have conflicting aspects while having consistent aspects. The party-autonomy can play the role of resolving the conflicts between efficiency and fairness. Specifically, when the parties can reach the agreement, the agreement prevails; when the parties fail to reach the agreement, efficiency prevail with consideration to fairness. Efficiency is the primary value of re-arbitration. Therefore, in order to reach efficiency, a certain degree of sacrifice of fairness is accepted. The reasons are as follows. First, in the aspect of origin of arbitration, the efficiency value of arbitration takes advantage of litigation. Second, in the aspect of object of arbitration, arbitration resolves the disputes of property rights and interests between equal parties under maket economy which priorities efficiency. Third, in the aspect of stages of social development, the idea of efficiency prevailing with consideration to fairness would promot the economic development. The relationship between re-arbitration and functus officio reflects balance between fairness and efficiency.The third chapter discusses the applicable circumstances of re-arbitration. The applicable circumstance of re-arbitration is a legal issue. In order to analyze the applicable circumstances of re-arbitration, the basic theory of judicial supervision of arbitration should be discussed first. It is necessary for the court located where the arbitration takes place to supervise the arbitration, including the arbitral awards. The uniform scope of judicial supervision for both domestic and foreign related arbitration should be adopted. If parties expand the scope of judicial supervision to substantive matters by agreement, the court could supervise the substantive matters of arbitration. If parties do not reach such agreement, the scope of supervision is limited to the procedural matters and public order. The applicable circumstances of re-arbitration under Model Law are as follows. The party making the application furnishes proof that: the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration; or the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law. The applicable circumstance of re-arbitration in England is provided in section 68 of English Arbitration Act 1996. If the court considers an irregularity has caused or will cause substantial injustice to the applicant, then it constitutes serious irregularity and re-arbitration will be applied. Specifically, serious irregularity includes following circumstances:(a) failure by the tribunal to comply with section 33(general duty of tribunal);(b) the tribunal exceeding its powers(otherwise than by exceeding its substantive jurisdiction: see section 67);(c) failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by the parties;(d) failure by the tribunal to deal with all the issues that were put to it;(e) any institution vested by the parties with powers in relation to the proceedings or the award exceeding its powers;(f) uncertainty or ambiguity as to the effect of the award;(g) the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy;(h) failure to comply with the requirements as to the form of the award;(i) any irregularity in the conduct of the proceedings or in the award which is admitted by the tribunal or by other institution vested by the parties with powers in relation to the proceedings or the award. In Federal Arbitration Act of the United States, the applicable circumstances are as follows:(a) where the award was procured by corruption, fraud, or undue means;(b) Where there was evident partiality or corruption in the arbitrators, or either of them;(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced;(d) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award was not made. In Uniform Arbitration Act of the United States, the applicable circumstances are as follows:(1) the award was procured by corruption, fraud, or other undue means;(2) there was(A) evident partiality by an arbitrator appointed as a neutral arbitrator or(B) corruption by an arbitrator or(C) misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;(3) an arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to Section 15, so as to prejudice substantially the rights of a party to the arbitration proceeding;(4) an arbitrator exceeded the arbitrator’s powers;(5) the arbitration was conducted without proper notice of the initiation of an arbitration as required in Section 9 so as to prejudice substantially the rights of a party to the arbitration proceeding. The applicable circumstances of re-arbitration in Germany are provided in section 1059 of Code of Civil Procedure, which are the same as those under Model Law. The above three countries, i.e. England, the United States and Germany use uniform applicable circumstances of re-arbitration toward both domestic arbitration cases and foreign arbitration cases, and the applicable circumstances of re-arbitration are mainly procedural defects.The fourth chapter discusses the other legal issues of re-arbitration except the applicable circumstacens, including start body, trial subject, scope of trial and legal consequence. In respect of the start body of re-arbitration, different countries have different regulations, which mainly have three kinds. First, the court starts re-arbitration ex officio; second, the court’s discretion combines one party’s application to start re-arbitration; third, the court starts re-arbitration with priority. The court starting re-arbitration ex officio, not asking the will of parties, would violate the principle of party-autonomy. To be specific, when two partie are not willing to re-arbitrate, for example, they has lost confidence toward arbitration and resort to use litigation, the application of re-arbitration does not conform to the parties’ interests. When one party challenges the award(except the challenge of not executing the award), the court shall apply re-arbitration with priority. Given keeping the balance between the court’s judicial supervision and parties’ autonomy, it is not reasonable to provide start power to one side and taking both sides into consideration is a more appropriate way. In other words, where the court deems it appropriate and so requested by the party, re-arbitration shall be applied. The role of the tribunal in start procedure of re-arbitration cannot be ignored. In respect of trial subject, most countries provide that the trial subject of re-arbitration is the original tribunal. Article 23 paragraph 3 of Uniform Arbitration Act of the United States differentiates the trial subject in different circumstances. If two parties can reach an agreement about the trial subject, then the parties’ choice shall be respected. If two parties cannot reach such agreement, then remit the case to the original tribunal in principle. There are three reasons. Fisrt, the original tribunal knows the whole case and it has the ability to remedy the defects effectively. Second, the composition of the original tribunal and the arbitrators are chosen by the parties, so the original tribubal acting as the trial subject of re-arbitration reflects respects to parties’ willings. Third, self remedy by the original tribunal would be more efficient. However, if the original tribunal has lost the base of justice or the trust of the parties, for example, the arbitrator of the original tribunal violates the ethics, remit the case to a new tribunal. In respect of the scope of trial, the court shall illustrate the reason of re-arbitration and the tribunal shall re-arbitrate the case according to the reason. Parties are not allowed to add claims, cancel claims or put forward counter-claims. In respect of the effects of re-arbitration to setting aside procedure, different countries have different regulations. First, suspend the setting aside procedure and then conduct re-arbitration; second, set aside the award and then conduct re-arbitration; third, setting aside procedure and re-arbitration parallel, and doesn’t affect each other. Analyzing from the rational, suspending the setting aside procedure is the most reasonable. In respect of the effects of re-arbitration to the original arbitration procedure, the validity of the original award is pending. After the award of re-arbitration is made, the new award replaces the corresponding part of the original award, and the new award and the effective part of the original award constitute a complete award.The fifth chapter discusses the legislation and practice of re-arbitration in China. The legislative background of arbitration law promulgated in 1995 was administrative legislation system. Re-arbitration under 1995 arbitration law is attached to setting aside procedure and makes a difference between the applicable circumstances of domestic arbitration award and that of foreign related award. The re-arbitration system in China has some defects. First, the court starting re-arbitration ex officio would breach the parties’ autonomy. Specifically, where the court deems that there are applicable circumstances of re-arbitration and decides to remit the case for re-arbitration, two parties have no intention of re-arbitration, which would go against the party autonomy principle. Second, the applicable circumstances of domestic arbitration cases exclude procedural defects and are limited to two substantive matters, i.e. “the evidence on which the arbitral award is based is forged” and “the other party concealed any evidence, which is enough to impact the impartial award”, which are not reasonable. Applying re-arbitration to the substantive matters has two disadvantages: on one hand, it does not meet the original intention of putting re-arbitration into Model Law; on the other hand, it would breach the finality principle of arbitration. However, new evidence can be an exception. Because the presentation of new evidence cannot subjectively controlled by the tribunal and it cannot to blame the tribunal, when one party puts forward new evidence found after the award was made and the evidence is enough to overturn the original award, shall give the tribunal an opportunity of re-arbitration. Third, providing that the trial subject is the original tribunal is inappropriate. When the original tribunal has serious procedural defects and losts the trust from the parties, it is not reasonable to make the original tribunal to conduct a retrial. Fourth, in practice, the court does not illustrate the reason of re-arbitration and allows the parties to add claims, withdraw claims and put forward counter-claims. Fifth, the arbitration law does not stupilate the effect of the original award after the re-arbitration starts. It is necessary to improve the defects of re-arbitration in China. First, in the respect of start body, where the court deems it appropriate and so requested by the party, re-arbitration shall be applied with priority. Second, in the respect of applicable circumstances, it shall be confined to procedure matters, but the new evidence can be an exception. Third, in the respect of trial subject, unless otherwise agreed by the parties, remit the case to the original tribunal in principle; where the original tribunal loses trust from parties, remit the case to a new tribunal. Fourth, in the aspect of the scope of trial, the court shall illustrate the reason of re-arbitration and the tribunal shall re-arbitrate the case according to the reason. Parties are not allowed to add claims, cancel claims or put forward counter-claims. Fifth, in the aspect of legal consequence, after starting re-arbitration, the cancellation procedure suspends and the validity of the original award is pending; after the award of re-arbitration is made, the new award replaces the corresponding part of the original award, and the new award and the effective part of the original award constitute a complete award. |
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