| In recent years,the number of financial disputes has been experiencing the tremendous growth.A research project conducted by Dr Joanne Braithwaite of London School of Economics and Political Science confirmed that a total of 78 decisions involving ISDA documentation were handed down by English Courts alone during the period 1993 to August 2011.Of these,60 percent occurred between 2009 and 2011.The statistics released by domestic courts and arbitration institutions also show the same trend,that is,both the number and amount of financial disputes are rising dramatically.In general,the growth of financial markets dispute in recent years owes much to the financial crisis that kicked off in 2008 as well as to the economic developments and structural adjustments in post-financial crisis era.At this stage,the traditional business modes cannot meet the development needs of financial markets.Banks and other financial institutions have already carried out a series of financial innovations including business innovation like liability business,asset business and the broker business,techniques innovation like asset and liability management,financial market innovation and financial system innovation.Besides that,self-service terminals,the phone banking,internet banking and mobile banking are emerging and become prevalent,which also lead to the increase in new financial commercial disputes.The disputes have developed from traditional modes to a stage where the disputes need to be settled with high technology,and sometimes involved different jurisdictions.Financial industry has in the past been notorious for its rejection of arbitration and other methods of alternative dispute resolution.Financial institutions have the preference for taking financial market disputes to courts,especially the courts in financial centers.By way of example,the ISDA master Agreement provides in effect for a “tick the box” choice between New York and English courts only.However,geographical expansion of the industry,product expansion,and an expansion of the universe of market participants on both the buy side and market-making side of the business have all challenged the assumption that dispute settlement was best centered in the courts of just one or two,often remote,jurisdictions.The sheer volume of modern financial transactions has inevitably resulted in a “complex world of increasingly connected markets and jurisdictions”,calling for more flexible and finetuned dispute settlement solutions.The complexity of structured financial products too has grown enormously,with constant and ongoing innovations.Thus,the global nature and creativity of the markets calls out for a need to be similarly international and innovative in crafting suitable dispute settlement solutions.In this background,the attitudes of financial industry have changed quiety.It is significant that 69% percent of Financial Service sector respondents in a recent survey held by the Queen Mary,University of London and Price WaterhouseCoopers,expressed their support for arbitration as an effective dispute resolution process.Beside,according to the statistics released by ICC,from 2008 to 2012,the number of financial arbitration has increased from 7.2% to 15%.FINRA also expressed the same conclusion.The banks in Islam have strong demanding in arbitration as well;the parties always choose arbitral institution with the same religion to settle the disputes.In this background,London City Disputes Panel published its Financial Arbitration Rules in May 2009;the Panel of Recognized International Market Experts in Finance(“P.R.I.M.E Finance”),whose purpose is to help resolve,and to assist judicial systems in the resolution of disputes concerning complex financial transactions,was established in Hague,Netherland had published its first edition of financial arbitration on January 16,2012;the International Swap and Derivatives Association(“ISDA”)issued its 1.0 edition of ISDA Arbitration Guide(“Guide”)on September 9,2013.The member of ISDA could select the arbitration clause provided by Guide as the arbitration clause to apply either 1992 or 2002 edition of ISDA Master Agreement.Banking Commission,International Chamber of Commerce and International Court of Arbitration,two influential and independent institutions in respective fields,held Arbitration and ADR in Banking and Finance Disputes Seminar in Doha on March 29,2012.International Bar Association held 1st International Financial Law(Asia)Seminar in Shanghai and list securities and financial arbitration as one of the major topics.These seminars and relevant regulations,the publishing of Guide demonstrate the trend that international financial area has chosen arbitration dispute settlement mechanism.Considering the features of financial arbitration,Chinese arbitration institutions also designed its own Financial Arbitration Rules,among which the Financial Arbitration Rules published by CIETAC on 4 April 2003 is the most typical one,which was viewed as the milestone in the development of financial arbitration development.The new version also came to effect on 1 January 2015.The first financial arbitration institution,Shanghai Court of Financial Arbitration has been established on 18 December 2007.After that,a series of financial arbitration institutions have been set up successively in Guangzhou,Wuhan,Zhengzhou,Chongqing,Hangzhou,Wenzhou,Taizhou,Shenzhen and Dalian.Although financial arbitration has been recognized and given attention,the problems arising from theory and practice have not been fully studied and addressed.1.The conception of Financial Arbitration is too limited and traditional.It is defined by concluding and listing its case scope;2.The discussion on arbitrability of financial arbitration is not deep enough;3.There is no unified view on arbitrators' conflicts of interests;4.The arbitral procedures are not well rounded,such as procedural order,interim measures and the collection and allocation of arbitration costs;5.The significance of financial arbitration on other kind of arbitrations need to be recognized and studied.Based on financial arbitration's flexibility,autonomy and professionalization,taking effeciency,fairness value-oriented aim,the thesis attempts to establish and perfect Chinese Finiancial Arbitration system.The thesis has four parts and nine chapters.In Part One,arbitraion's traditional definition and its limitations have been first clarified,and then the author redefines it based on its latest developments in practice.After that,the necessity and feasibility of financial arbitration have been analyzed.The author believes that the lack of substancial laws and regulations on financial disputes,the courts' negative attitudes on accepting financial cases and the risks of local protectionism makes financial arbitration necessary and reasonable.The second part of the thesis dealing with legal problems of financial arbitration opens with an analysis of arbitrators' conflicts of interest,especially the potencial conflicts between arbitrators' expertise and independence.In international commercial arbitration practice,the standards of interest conflicts are flexible and inconsistent.On the basis of which,the author makes suggestions on the standards for identifying and measures for preventing conflicts of interest.This thesis suggests that while ensuring the impartiality of arbitrators,the expertise of arbitrators will take the priority of independence.Chapter Four analyzes the deficiencies of the financial arbitration procedure,including the absence of procedure orders,the faultiness of provisional measures and the unreasonableness over arrangement and distribution of arbitration costs.Part Three focuses on typed financial arbitrations.The thesis selects securities arbitration(which is first practiced in international financial arbitration),derivatives arbitrations(the most complex and sophisticated one in financial arbitration)and finance leasing arbitration(which is practiced the most in China)as examples,analyzing its specific operations and existing problems,making a conclusion on its development experiences.Part Four starts with analyzing,concluding and summarizing statistics and materials from various arbitration committees and the cases that decided by the author,and then explains the trend of diversification of financial arbitrations in China.Apart from those traditional disputes,the number of new types of professional disputes,such as equity transfer disputes,finance leasing disputes,has been rising.On this basis,the article raises two proposals over the structure of financial arbitration in China,which is the establishment of procedural rules and the improvement of applicable substantial law.The research methods mainly used in this article are: historical investigation?inductive and empirical argument ? statistical analysis,which are used to demonstrate the concept of financial arbitration ? to proposes the tendency of international financial arbitration on the basis of analysis and to breaks through traditional research methods.When study financial arbitration,we should not only offer hypothesis and theories,but also proofs. |
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