Research On The Third Party System In Arbitration

It is generally believed that the third party of arbitration refers to the non-signatory of the arbitration agreement,who has interest demands for the object or result of the arbitration based on the contract or property relationship,and hopes to participate in the arbitration procedure in the form of intervention or addition.However,the third party of arbitration is a broad concept,and its concept includes two types of third party of arbitration: one is the nonsignatory party based on the same arbitration agreement,and the other is the non-signatory party based on different arbitration agreements,that is,the outsider of the arbitration case.At the beginning of the development of arbitration system,the principle of relativity of contract has always been the mandatory rule in the laws of various countries.Third party can not participate in the arbitration there are two shortcomings,on the one hand,the current arbitration system for the legitimate rights and interests of the third party inadequate protection,resulting in the legitimate rights and interests of the third party damage.For example,synchronous arbitration,combined arbitration,default arbitration and reconciliation system,but these legal approaches have shortcomings: synchronous arbitration not only has the possibility of inconsistent results,but also involves the limitation of the rights of arbitrators,limitation,arbitration time,evidence and cost;Merger arbitration is not only controversial in theory,but also can not reach consensus in judicial practice.The procedural requirements of arbitration by default are complex and only applicable to the common law system.The reconciliation system needs case analysis and lacks stability.On the other hand,the development of arbitration system is limited.For example,in the arbitration procedure of the third-party financial aid,the identification of the third-party financial aid provider is a problem.Therefore,it is necessary to establish a third party arbitration system to solve the problems caused by the third party can not participate in the arbitration.The theoretical basis of establishing the third party arbitration system lies in the maturity of the theory of the extension of the validity of arbitration agreement.It is generally believed that the validity of the arbitration agreement is limited to the signatory parties to the arbitration agreement,and the non-signatory parties to the arbitration agreement shall not be bound by the arbitration agreement.However,due to the maturity of relevant theories in recent years,relevant foreign laws and the relaxation of the arbitration rules of some international commercial arbitration institutions on the form of arbitration agreement,the validity of arbitration agreement is no longer limited to the signatory of the arbitration agreement,and the non-signature of the arbitration agreement is also bound by the arbitration agreement.Scholars refer to the situation that the arbitration agreement binds the non-signatory of the arbitration agreement as the expansion of the effectiveness of the arbitration agreement,and call the theory that supports the expansion of the effectiveness of the arbitration agreement "the expansion of the effectiveness of the arbitration agreement".The expansion of the validity of arbitration agreement mainly includes the breakthrough of the exception principle of contract relativity,the agency theory,the principle of fair and reasonable expectation,the principle of prohibiting counter-speech and the principle of good faith,and the development of diversified forms of arbitration agreement.Among them,the breakthrough of the principle of relativity of contract is the most important.Although adhering to the principle of relativity of contract reflects its positive effect,the negative effect caused by its negative effect is becoming more and more serious.It has been criticized in both common law countries and civil law countries,so breaking through the principle of relativity of contract has gradually become an important part of the laws of all countries.The factors of breaking through the principle of relativity of contract include exogenous factors and endogenous factors.The endogenous factor is the weakened status of the classical contract law,while the exogenous factor is the mature theory that supports the third party to obtain the corresponding rights,for example,the theory of benefiting the third party.Due to the expansion of the validity of the arbitration agreement,the non-signatories based on the same arbitration agreement are bound by the arbitration agreement and have the qualification to participate in the arbitration.This situation leads to the formal differentiation of the concept of the third party in arbitration: one is the non-signatory of the same arbitration agreement,who is bound by the arbitration agreement due to the expansion of the validity of the arbitration agreement and becomes the party of the arbitration agreement in the state of fact and is qualified to participate in the arbitration;The other category is also the non-signatory of the arbitration agreement,who is not a non-signatory of the same arbitration agreement and is not subject to the tension of the arbitration agreement and is not qualified to participate in the arbitration.In order to facilitate readers' understanding,this paper represents a third party who is bound by the same arbitration agreement and an outsider represents a third party who is not bound by the same arbitration agreement.Therefore,the construction of the "third party arbitration" system should be started from two aspects: first,to provide relief procedures for the third party;second,to provide relief procedures for outsiders.The relief procedure for the third party is divided into pre-relief procedure and post-relief procedure.The former remedy procedure for the third party mainly consists of two parts: one is that the expansion of the validity of the arbitration agreement makes the non-signatory of the arbitration agreement get the qualification to participate in the arbitration.Second,the content setting of the third party participating in the arbitration procedure.The third party's accession to arbitration mainly involves relevant provisions of New York convention,arbitration law or civil procedure law and arbitration rules of arbitration institutions.The content arrangement of the arbitration law on the third party's participation in the arbitration is mainly reflected in: recognizing the "non-signature" requirement of the arbitration agreement,stipulating the procedural right of the arbitration tribunal and supporting the principle of the parties' autonomy to the maximum extent in the process of the third party's participation in the arbitration procedure;The arbitration rules of an arbitration institution are the rules regulating the specific procedures for arbitration and the corresponding arbitration legal relations in the procedures.They begin with the parties initiating arbitration for the disputes under the arbitration agreement and end after the arbitration award is made.Although the arbitration rules have no legal effect,they have limited legal binding force because the arbitration law of each country expressly authorizes the permanent arbitration body to formulate arbitration rules.In addition,the content setting of the third party participating in the arbitration procedure should reflect the characteristics of the forced rule and the common law rule.The compulsory rule mainly means that the parties to arbitration are not allowed to break through the autonomy of will.The common law rules mainly refer to the realization of autonomy of will by the parties within a certain range under the premise of not violating the rules of coercion,which is stronger than the arbitrary rules and weaker than the rules of coercion.The remedy procedure for the third party already exists in the arbitration law,that is,the arbitration party cancels the arbitration system.The reason lies in that the third party is a non-signatory who is bound by the arbitration agreement.After the arbitration award is made,he/she may apply for cancellation of the arbitration award as a party to the arbitration in accordance with the arbitration law.Therefore,this part is not covered in this article.The relief procedure provided to the outsider includes the relief procedure provided to the outsider before the case and the relief procedure provided to the outsider after the case.It must be noted that the procedure setting for an outsider to join the arbitration is basically the same as that for a third party to join the arbitration,except that the conditions for joining the arbitration are inconsistent.The expansion of the effectiveness of the third party arbitration agreement is bound by the arbitration agreement,so it is naturally qualified to join the arbitration.However,as an outsider to the arbitration case is not bound by the arbitration agreement,he may join the arbitration only with the unanimous consent of the parties to the arbitration.Since the parties to the arbitration unanimously agree that the entry of an outsider into the arbitration is equivalent to the parties to the arbitration and the outsider re-entering into an arbitration agreement,which solves the problem that the outsider is not bound by the arbitration agreement,the effect is equivalent to the expansion of the effectiveness of the arbitration agreement to the outsider.Therefore,there is only a difference in the conditions for an outsider to join the arbitration procedure and a third party to join the arbitration procedure,and the rest contents are the same.In order to avoid unnecessary duplication,this paper combines the two parts and only explains the procedural elements of adding arbitration to the third party.The main purpose of an outsider's action to cancel an arbitration award is to cancel the content of the effective arbitration award that damages the outsider,while the rest of the arbitration award is ignored.The reasons are as follows: first,the arbitration award improperly breaks through the relativity principle of res judicata and damages the legitimate rights and interests of the outsiders in the arbitration case.In addition,the current arbitration system lacks relief procedures for the outsiders in the arbitration case.Second,although the rights and interests of local damaged the arbitration the arbitration ruling is not an outsider,but because of the arbitration system of the original agreement between the parties a way of dispute resolution,the stability and the expectant benefit of the parties from maintenance deal perspective,should not completely deny the effectiveness of the arbitration award,only will harm the arbitration ruling of outsiders to cancel.As to whether the arbitration award is made by the parties in bad faith,we will not ask.Even if the original party damages the lawful rights and interests of an outsider in the arbitration case through false arbitration,the outsider may completely cancel the arbitration award through the lawsuit,so that it does not have real effect.In the process of constructing the third party system of arbitration in China,apart from the previous analysis,there are some problems in the study of the third party system of arbitration in China.The key is to define the scope of the third party of arbitration.As analyzed above,the third party of arbitration includes not only the nonsignatories of the arbitration agreement who are bound by the extension of the validity of the arbitration agreement,but also the outsiders of the arbitration case who are not bound by the extension of the validity of the arbitration agreement.Second,the content of the extension of the validity of arbitration agreement is not clear in our legal system,which needs to be further clarified.Third,the arbitration law lacks provisions on the procedure setting for the participation of a third party in arbitration and the procedure setting for the participation of an outsider in an arbitration case.The arbitration rules of some domestic arbitration institutions have set up corresponding procedural requirements for "the third party of arbitration" to participate in arbitration.In order to better support the construction of the third party system of arbitration,it is necessary to make corresponding provisions in the superior law.Fourth,when the arbitral award improperly damages the legitimate rights and interests of the outsiders in the arbitration case,the outsiders in the arbitration case lack a more effective remedy to protect their rights and interests except that the outsiders in the arbitration case are given objection in the implementation stage in the current judicial interpretation of the supreme people's court.Therefore,The construction of the third party arbitration system in China should start from two aspects: first,legislative Suggestions,including the construction of the third party interest contract,the expansion of the validity of the arbitration agreement,so that more outsiders become the third party arbitration,and in the arbitration law to increase the third party arbitration and the third party arbitration procedures.Second,strengthen the judicial review of the arbitration involving the third party,including the judicial review of the form of arbitration agreement and the judicial review of "public policy".