Study On The Construction Of Class Arbitration System Of China

In the wave of economic globalization,various kinds of legal relations are becoming more and more complicated.The same commercial activity may involve several parties.When disputes arise in multi-party transactions,the interests of tens of thousands of parties may be involved.In recent years,various large-scale disputes characterized by multi-party and multi-contract have begun to emerge in large numbers,which has brought great challenges to the traditional bilateral dispute settlement system.In order to properly solve large-scale disputes,some countries have established corresponding litigation settlement system.However,the high threshold,complex procedure,long time and high cost of group litigation,especially class litigation,make many victims who seek small compensation hesitate.A relatively simple procedure,faster time and cheaper alternative dispute resolution systems urgently needed to solve the growing large-scale disputes.Class arbitration emerges as a new type of alternative dispute resolution system which can effectively reduce the threshold and cost for victims,improve the efficiency of dispute resolution and safeguard the rights of small and weak groups,and provides valuable experience and inspiration for the practice of solving large-scale disputes in the world.With the intensification of large-scale disputes at home and abroad,how to innovatively introduce the class arbitration system in order to safeguard national and international interests and protect the rights and interests of the parties has become an unavoidable and urgent practical problem in China.This dissertation is divided into six chapters besides introduction and conclusion.The first chapter explains the true meaning of class arbitration and introduces the basic context of the evolution of class arbitration system.Firstly,starting from the original meaning of class arbitration,this dissertation discusses three different expressions of class arbitration in the source language by means of legal translation and interpretation,and distinguishes the confusing concepts of class arbitration in Chinese and English.Secondly,by comparing class arbitration with traditional arbitration,it clarifies that class arbitration is essentially a kind of large-scale consolidated arbitration but different from traditional consolidated arbitration.Finally,by tracing the origin of class action procedures,the development process of class arbitration is sorted out,and the international prospect of class arbitration is predicted.The second chapter combs the international experience of class arbitration system.There are two kinds of class arbitration systems in the United States and some European Union Member States at present,so-called the American Class Arbitration System and the Collective Arbitration System in some EU member states.Although the two kinds of arbitration systems belong to class arbitration system in a broad sense,the American Class Arbitration system takes the “opt-out” pattern as its basic feature,whereas the Collective Arbitration System in most of the EU Member States takes “opt-in” pattern.Moreover,by analyzing and comparing the relevant rules of the Class Arbitration System and the Collective Arbitration System,some special procedural rules that distinguish class arbitration from traditional arbitration,such as the procedure of the jurisdiction of arbitration,selection of arbitrators,certification of class members,hearing of arbitration tribunal and judicial supervision,are different from the traditional arbitration procedure.The third chapter analyzes the legitimacy of class arbitration system,seeking rationality basis for the existence of this kind of system.Aiming at the viewpoint that “class arbitration changes the nature of arbitration”,this dissertation indicates that class arbitration has never changed the nature of arbitration,based on the traditional theories of civil law,such as Agency and Transfer,Estoppel,Fair and Reasonable Expectations for the Third-Party,Groups of Contracts Doctrine,etc.Secondly,through the analysis of parties' relationship,nature of claim and selection of arbitrators,it is concluded that class arbitration conforms to the principle of due process in arbitration,thus class arbitration does not change the nature of arbitration.It is suggested that the traditional arbitration theory should be enriched with a dynamic and developmental perspective.Finally,it evaluates the value and function of group arbitration,and holds that class arbitration can reconstruct “real equality between two parties”,reduce relief costs and deter breach of law.The fourth chapter analyses the necessity of establishing class arbitration system in China.Firstly,by investigating the current situation of China's group relief system,the reasons why the effect of the current system on solving large-scale disputes is not obvious are explored.Secondly,the impact of large-scale disputes on the domestic situation is analyzed.It is believed that in today's China,large-scale civil and commercial torts are constantly emerging,large-scale environmental torts are becoming more and more intense,and the era background of weak protection and relief for vulnerable groups is inadequate.Thirdly,the influence of large-scale disputes on the international situation is analyzed.It is believed that the globalization of large-scale disputes has damaged the national interests,the widening of the field of large-scale disputes has damaged international relations to a certain extent,and the frequency of large-scale disputes has posed a certain threat to world peace.As a world power,China should shoulder international responsibility for construction of class arbitration system in order to solve international large-scale disputes.Finally,by combing and analyzing the current arbitration system in China,it is considered that the “OBOR” project advocated by China is in urgent need of perfecting the international commercial arbitration system,and the existing multi-party arbitration system is also in urgent need of perfection.The establishment of the class arbitration system can make up for the deficiency of the current arbitration system.Therefore,it is necessary and urgent for China to construct class arbitration system.The fifth chapter analyses the dilemma of China's construction of class arbitration system.Firstly,from the perspective of arbitration theory,there are obvious conflicts between class arbitration and traditional arbitration,especially the four basic principles of voluntariness,independence,confidentiality and expeditiousness.Secondly,from the point of view of the procedural rules of class arbitration,the validity of the award,due process and the impact on public policy of class arbitration have been questioned.Finally,from the point of view of the supporting system needed to construct the class arbitration system,China's current representative litigation system,arbitration legal system and arbitration fee bearing system cannot provide supporting rules for the construction of the class arbitration system.Therefore,in order to construct China's class arbitration system,it is necessary to break through the barriers of traditional arbitration theory,follow up the supporting legal system and innovate the rules of arbitral process.The sixth chapter gives some suggestions on the construction of China's class arbitration system.Firstly,China should break through the traditional “individualoriented” bilateral arbitration,integrate “individual-oriented” into “social-oriented”,and establish the concept of balance,due process and social public interest.Secondly,it is suggested to amend the interpretation rules of arbitration agreement,establish the legal status of third-party system and consolidated arbitration,improve the procedural rules of representative actions,and provide a supporting system for the design of class arbitration system.Thirdly,in the choice of class action pattern,through the analysis of the advantages and disadvantages between “opt-in” and “opt-out” patterns,it is advocated that the group of victims should be given the right of self-drafting by combining the advantages of the two patterns.Fourthly,the framework of class arbitral process is under design.As that the traditional arbitration theory cannot be changed for the time being,the application,certification of arbitration,as well as the certification of class members and representatives,are not contrary to the principles of voluntariness and speediness of arbitration,and the procedural rights of the parties to arbitration are basically protected.Fifthly,in the aspect of judicial supervision,it is suggested that the court should supervise and assist the class arbitration,and that the court should undertake the obligation to unify the fairness and efficiency of the class arbitral process.Sixthly,the recognition and enforcement of the final award of class arbitration need to meet the relevant provisions of the New York Convention.In the context of the impossibility of amending the New York Convention,group arbitration needs to investigate the possible defences against recognition and enforcement in the light of articles 4 and 5 of the New York Convention.This dissertation studies the development of class arbitration,system comparison,theoretical analysis,practical conflicts and system design.It draws five conclusions: First,class arbitration is seeking social and public welfare.Compared with class litigation,class arbitration has the characteristics of high efficiency,fast speed and low cost.It is an effective way to solve group disputes.Second,class arbitration is legitimate,and its existence is not only supported by solid theoretical foundation,but also irreplaceable by other dispute settlement systems.Third,the arbitration theory should be enriched and perfected according to the needs of social development rather than unchanged.Fourthly,the construction of China's class arbitration system is not only to cope with the impact of large-scale disputes on China,but also to shoulder the responsibility of major powers to maintain international order.Fifth,to construct China's class arbitration system,we need to break through the barriers of traditional arbitration theory,follow up the supporting legal system and innovate the rules of arbitral process.