Research On Arbitrability Of The Civil And Commercial Dispute

In modern society of economic construction centralized and economic globalization,frequent occurrence of civil and commercial dispute made civil and commercial arbitrationsystem more and more important as a formal dispute settlement mechanism. The problem ofarbitrability is a most basic problem in the civil and commercial arbitration system, becausethis problem relates to the arbitration agreement whether effective, the arbitration tribunalwhether obtain jurisdiction, the arbitration award whether can be recognized and enforced atthe circumstance of international arbitration. While, strangely, so far there is no systematicworks on this important problem in our academic circles.Based on this, the author starting with the nature of the civil and commercial arbitrationsystem which divergent but determine the problem of arbitrability, explore all kinds ofdoctrine theory on the nature of the civil and commercial arbitration system, and furtherproposed the basis determined the arbitrability. Meanwhile, the author investigated theregulations on the arbitrability in arbitral international legislation and several advancedarbitral national legislation, and points out the development situation on the arbitrability.Finally, the author analysis the current legislation on arbitrability in our country, andproposed the foundation to reform current situation and the path to perfect legislation.This dissertation contains five chapters, the content in each chapter are as following:Chapter Ⅰ: Introduction. In this chapter, the author introduced the research value,the research method and the research theme of this dissertation. First, the civil andcommercial arbitration system is a desirable choice to the dispute resolution from the parties,which with autonomy of will as it’s primary feature, but which dispute can be resolvedthrough arbitration system must be restricted by legislation and judication. So, explore theinner logic and extent of this restriction is very valuable to legislation and judicial practice.Second, because the problem of arbitrability is a fundamental problem in arbitration systemand is closely related to the nature of arbitration system, the author proposed that we can’tresearch the problem of arbitrability limited to a certain aspect or some aspects. We mustresearch through tridimensional perspective and synthetic route. Finally, arbitrability containstwo meaning: subjective arbitrability and objective arbitrability. Subjective arbitrability is whether the dispute party have the qualification or capacity refer to arbitration system, andobjective arbitrability is to the dispute itself, that is the dispute whether can be resolvedthrough arbitration system. This dissertation restrict within the objective arbitrability.Chapter Ⅱ: Theory origins to the arbitrability of civil and commercial dispute. Thepurpose of this chapter is to explore the nature of arbitration system and it’s definition toarbitrability, because different cognition to the nature of arbitration system will lead todifferent boundary of arbitrability. First, in this chapter, the author introduce four academicschools of the nature of arbitration system. The doctrine of judicial nature claims that becausearbitration and judicature are judgment action with legal effect, and they have several samejudicial principle and procedure construction, so the arbitration system is judicial nature. Thedoctrine of contractual nature claims that the arbitration originated from the parties’ contract,the arbitrator elected by the parties, the arbitration procedure structured by the parties, thearbitration award can be controlled by the parties, so the arbitration system is contractualnature. The doctrine of autonomy nature claims that the nature of arbitration system should bedetermined by the purpose and function of the arbitration system, because the arbitrationsystem is developed without regard to the law by the merchant, so the arbitration system isautonomy nature. The doctrine of mixed nature combined the reasonable core of the doctrineof judicial nature and contractual nature, and claims that the arbitration system both has thejudicial and contractual nature. The author pointed out that the contractual nature is thedominant feature of the arbitration system, but this contractual feature must be controlled bythe judiciary. So, the arbitration system reflects the contractual nature but controlled by thejudiciary. Guiding by the different doctrine of arbitration system, the problem of arbitrabilityis also different. According to the doctrine of contractual theory, the scope of arbitrability isthe scope of contractuability. According to the doctrine of judicial theory, the scope ofarbitrability is the scope of actionability. And according to the doctrine of contractual butcontrolled by the judiciary theory, the scope of arbitrability is the scope of contractuabilitywhich affected by actionability.Chapter Ⅲ: The determine basis to the arbitrability of civil and commercialdispute. The purpose of this chapter is to explore the basis determined the actionability ofcivil and commercial dispute. First, because the arbitration system leaded by contractualfeature, and the inner requirement of contract is the parties’ equality based on consensus, sothe author pointed out that the main criterion of actionability is the equal status of the parties. Second, because not all the dispute with equal relationship can arbitrate, and some disputewith inequal relationship can arbitrate, so the author pointed out that we can’t put the parties’equality as the only criterion of arbitrability, we must put the disposable of the dispute as theauxiliary criterion of arbitrability. For the main criterion of the parties’ equal and the auxiliarycriterion of disposable of the dispute, the author explored the arbitrability of the intellectualproperty dispute, the tort dispute, the securities dispute, the bankruptcy dispute, thecontractual dispute involving public interest and the physical discipline dipute. Finally, theauthor explored the problem of the applicable law to arbitrability. Each country has differentattitude to the scope of arbitrability, so we will involve the problem of the applicable law toarbitrability at the circumstance of international arbitration. This dissertation explored threemethods determined the applicable law of arbitrability. That is according to the applicable lawof the arbitration agreement, the applicable law of the dispute matters and the law of theforum.Chapter Ⅳ: Comparative law analysis to the arbitrability of civil and commercialdispute. This chapter explored the provision of arbitrability in New York Convention, UnitedNations Model Law on International Commercial Arbitration and several developedarbitration system nations. And generalized the arbitrability trends in the internationalcommunity. First, there is no substantive provision to arbitrability in the New YorkConvention, and only provides that apply the law of the forum at the stage of the recognitionand Enforcement of arbitral awards. There are several criterions to the applicable law ofarbitrability in the stage of arbitral jurisdiction, and the author pointed out that apply the lawof the forum was more reasonable. Differently, the United Nations Model Law onInternational Commercial Arbitration provides widely to the definition of the arbitrability ofcommercial affairs. We can find that although the two convention provide widely to theproblem of arbitrability, but reserve it to the domestic law ultimately. Second, the authorcompared the different attitude to arbitrability in America, Britain, France and Switzerland. InAmerica, the traditional practice to arbitrability is whether the dispute involve significantpublic interests, but promoted by the litigation explosion and the ideal of pro-arbitration, thiscriterion loosed and turn to elements of declaration of will. In Britain, there is a tradition ofmighty judicial supervision to the arbitration, the author explored the attitude change to thearbitrability of the consumer dispute, fraudulent dispute and illegal dispute, and pointed outthat the independence of the arbitral clause is the basic reason of this change. As a pays du droit ecrit, France provide the problem of arbitrability in the code, and only the contractualdispute can arbitrate. But the doctrine of the selective inarbitrability of statutory rights madesome not contractual and statutory rights can resolve through arbitration. In Switzerland,directly apply substantive criterion rather than applicable law to judge the problem ofarbitrability. Switzerland toward loose attitude to the problem of arbitrability, all disputeinvolve property can resolve through arbitration, and generally don’t consider the problem ofrefuse to recognize and enforce the award according to the law of executive country.Through comparative analysis, the author pointed out the basic attitude to the problem ofarbitrability in the international community: use the parties’ equal status as the formalcriterion and use the disposition of the interest in the dispute as the real criterion. The scope ofarbitrability in international arbitration was looser than that of domestic arbitration. Expansionof the ideal of private law enlarged the scope of arbitrability. Use the method of separation tosurmount the restriction of public policy.Chapter Ⅴ: Local Reconstruction to the arbitrability of civil and commercialdispute. This chapter explored the current legislation over the problem of arbitrability in ourcountry, and specific programs to perfect the problem of arbitrability. First, the arbitrationsystem in our country can be divided into civil and commercial arbitration and specialarbitration. For the civil and commercial dispute, we use whether the parties were equal andwhether the dispute interest can be disposed as the criterion of the problem of arbitrability.Second, the author pointed out that we must correctitude some cognitions when readjust theproblem of arbitrability in our country. The cognitions contained: identity of folk to thearbitration system, deep comprehension to the private autonomy, acceptance of the ideal ofglobalization and reposition of the value and function of the arbitration system. Finally, theauthor pointed out we must put the ideal of pro-arbitration to guide the problem ofarbitrability. So, negative interpretation should be forbidden when the law provide canarbitrate, positive interpretation when no legal provision, and restrictive interpretation whenthe law provide can’t arbitrate. For the legislative mode, the author pointed out we shouldreform the current combined type legislative mode. And adopt the legislative mode ofnegative generalization pattern.