| Alternative Dispute Resolution(ADR),which originated from the West in the latter half of the 20 th century,has gradually become an effective method for countries worldwide to address high litigation costs and a soaring number of lawsuits.Since the founding of the People’s Republic of China,ADR has served as an important way to resolve various disputes through the form of people’s mediation together with judicial trials.Starting with the promulgation of Opinions on Improving the Alternative Dispute Resolution and Opinions on Further Deepening the Reform of the Alternative Dispute Resolution of the People’s Courts by units such as the General Office of the Central Committee of the Communist Party of China,the State Council,and the Supreme People’s Court,China has developed an alternative dispute resolution mechanism centered around the courts by incorporating traditional negotiation,mediation,arbitration,and other non-litigation dispute resolution methods with contemporary significance.After nearly a decade of development,the alternative dispute resolution mechanism has evolved into an important legal system in China to maintain social stability,achieve fairness and justice,and guarantee economic development.The alternative dispute resolution mechanism in China’s maritime industry is a manifestation of the alternative dispute resolution mechanism in the field of maritime transport.It features the shipping dispute negotiation system,shipping dispute mediation system,and maritime arbitration system,which together form the core system for resolving shipping disputes in China.Since the 18 th National Congress of the Communist Party of China,China has made groundbreaking achievements in various aspects such as economic development,comprehensive deepening of reforms,democratic rule of law,ideological and cultural advancement.General Secretary Xi Jinping,with consideration of both domestic and international situations and the balance between national security and development needs,has put forward a series of important statements on the construction and development of the maritime sector,forming the ideology of building a maritime power in the new era.The 21 st century is undoubtedly the century of the ocean,with significant progress in the exploitation of marine resources and the development of maritime industries,including the shipping industry,which is an integral part of China’s socialist development in the new era.One crucial mechanism for resolving shipping disputes,besides the maritime trial system,is the alternative dispute resolution mechanism,represented by shipping dispute negotiations,mediation,and maritime arbitration.This mechanism meets the diverse dispute resolution needs of parties involved in shipping disputes and alleviates pressure on maritime courts by proactively handling disputes before litigation.In recent years,China has made remarkable achievements in the development of alternative dispute resolution mechanisms in the shipping industry.Various maritime arbitration institutions and shipping dispute mediation organizations have played vital roles in handling shipping-related disputes.However,at the same time,China’s alternative dispute resolution mechanisms in the shipping industry still face several challenges.In terms of shipping dispute negotiation system,China’s general negotiation legal system is facing significant construction difficulties.Although negotiation as a dispute resolution method has legal basis in China,there is a lack of specific legal norms,unified systematic and institutional arrangements,compared to dispute resolution mechanisms like litigation,arbitration,and mediation.Regarding the shipping dispute mediation system,while China has established a mediation legal system with people’s mediation at its core,specialized top-level design for commercial mediation is lacking.Additionally,Chinese commercial mediation organizations are facing challenges in terms of funding and professional mediators shortage.Consequently,the mediation of shipping disputes,as a branch of commercial mediation,faces similar issues.In the maritime arbitration system,China has already established a relatively complete legal system for arbitration.However,some parts of it still need further improvement.For instance,the lack of legislation at the level of seats of arbitration has given rise to problems in the enforcement of non-domestic arbitration awards and led to inconsistency in policies and publicity regarding the establishment of seats of arbitration.All the foregoing issues seriously hinder the construction of China’s alternative dispute resolution mechanisms in the shipping industry.Therefore,the author,based on the study of the general theory of disputes and their resolution mechanisms,analyzes and explores mainly the uniqueness,advantages,and practical challenges of shipping disputes,shipping dispute resolution mechanisms,and alternative shipping dispute resolution mechanisms in China.The dissertation sheds light on several key issues related to alternative dispute resolution mechanisms in shipping disputes,including the system of shipping dispute negotiation,mediation,and arbitration at the seat of arbitration with targeted analysis and feasible institutional improvement suggestions.The dissertation consists of five chapters:The first chapter is “Fundamental Issues of the Alternative Shipping Dispute Resolution Mechanism”.This chapter starts by introducing the general nature of civil disputes and their resolution.It then presents an empirical analysis of 211 guiding cases issued by the Supreme People’s Court,and three characteristics of shipping disputes:large amount,strong international involvement,and high technical requirement are summarized.The author also analyzes the characteristics of shipping dispute resolution,including a focus on pursuing substantive fairness,efficiency,and the use of alternative methods to resolve disputes.Subsequently,the chapter focuses on analyzing the concept and advantages of alternative dispute resolution mechanisms,such as their costeffectiveness,contribution to harmony,and ability to compensate for the shortcomings of litigation.It also introduces different types of alternative dispute resolution mechanisms,including various single and hybrid mechanisms.The chapter provides a comprehensive analysis of the characteristics and challenges of alternative shipping dispute resolution mechanisms,stating that China currently lacks a systematic alternative dispute resolution mechanism for shipping disputes.At the same time,the existing alternative shipping dispute resolution mechanisms in China face difficulties in efficiency of handling shipping disputes.The chapter highlights the special features of these mechanisms,such as their emphasis on professionalism and the green principle.Lastly,the chapter outlines the factors that influence parties’ choices of a particular alternative dispute resolution mechanism and provides an overall view of China’s alternative shipping dispute resolution mechanisms.Chapter Ⅱ is titled “Institution-Centered Shipping Dispute Consultation System”.Both the establishment of a consultation system and a shipping dispute consultation system in China are starting from scratch.Therefore,this chapter aims to adjust China’s shipping dispute consultation by constructing a general consultation system.Firstly,the author analyzes the current consultation system in China and the challenges faced by China.Currently,there is no specialized law specifically for the consultation mechanism,which leads to imperfections in its institutional design and structure.Our understanding of the institutions of the consultation mechanism can only be derived from scattered provisions in various departmental laws.These provisions may involve consultations in different fields and at different levels,but they lack a unified legal framework and clear institutional arrangements.As a result,there are issues with unclear definitions of consultations,weak enforceability of reconciliation agreements reached through consultations,the necessity to improve the effectiveness of consultation clauses in commercial contracts,the lack of safeguard measures for the consultation mechanism,and the need to elevate the status of the consultation mechanism.Subsequently,the chapter presents five individual cases of shipping dispute consultations,with the summary of the characteristics and advantages of the shipping dispute consultation system,including a high success rate in reaching reconciliation,the active participation of compensation and indemnity associations,suitability for small-scale disputes,applicability at any stage,as well as its ability to alleviate the pressure on the courts,create industry norms,and complement the shipping legal system.Finally,the chapter elaborates on how to effectively improve the success rate of consultations and achieve dispute resolution through negotiation,from four key perspectives of negotiation skills,common interests,relationship maintenance,and consultation objectives.Chapter Ⅲ explores the “Mediation System Centered on Institutional Improvement in Shipping Disputes”.This chapter is based on the fact that the development of maritime mediation in China is still at a relatively early stage.Therefore,it should be regulated from a higher level,that is,from the perspective of developing commercial mediation.In this context,the author analyzes Chinese commercial mediation under the framework of large-scale mediation.The first part if the discussions on the connotation of commercial mediation,which is the act of a neutral third party(mediator or mediation organization)facilitating the reconciliation of parties involved in a commercial dispute.Secondly,the author compares and analyzes the differences between commercial mediation and people’s mediation,including differences in organizational nature,mediation scope,guiding subjects,and funding sources.Subsequently,the chapter examines the characteristics of Chinese commercial mediation,and it is precisely because of the two major characteristics of “commercial nature” and “international nature” that the development path of commercial mediation diverges.Specifically,the “commercial nature” distinguishes commercial mediation from other types of mediation and determines whether it requires specific mediation procedures and mediator regulations.On the other hand,the “international nature”determines whether China’s commercial mediation system needs to be aligned with the international commercial mediation system.Therefore,clarifying these two major characteristics will help determine the development direction of commercial mediation in China.Next,the chapter thoroughly investigates the obstacles to the development of commercial mediation from three aspects: “domestic mediation policies”,“characteristics of mediation per se”,and “alignment of China’s institution with the United Nations Convention on International Settlement Agreements Resulting from Mediation”.Lastly,the author explores the similarities and peculiarities between maritime mediation and commercial mediation.In terms of similarities,both maritime and commercial mediation share similar natures,face similar organizational challenges,and have similar demands for mediators.As for the peculiarities of maritime mediation,it is characterized by long-standing practical experience and a stronger emphasis on the application of conventions.Chapter Ⅳ is “Maritime Arbitration System Centered on Optimization of Seats of Arbitration”.The selection of the seats of arbitration is a crucial aspect of international maritime arbitration,and the establishment of seats of arbitration is a key measure for China to create a new high ground for international maritime arbitration.Therefore,this chapter focuses on the construction of seats of arbitration and first defines the dual attributes of seats of arbitration,namely the complementary relationship between their legal and geographical attributes.Next,the author analyzes relevant concepts of seats of arbitration under Chinese law and,from the legislative perspective of the Arbitration Law of the People’s Republic of China,determines that the arbitration institution’s effectiveness is equivalent to determining the seats of arbitration.Finally,the chapter examines the concept of seats of arbitration in policy documents,indicating that the current construction of seats of arbitration emphasizes geographical significance characterized by advanced rules,developed urban construction,and prominent geographical advantages.The author then proceeds to analyze the standards for constructing first-class seats of arbitration,including having a supportive legal system in the host country and attractive arbitration institutions.It concludes by discussing temporary arbitration issues.Currently,the lack of effectiveness in China’s temporary arbitration is largely due to the absence of the concept of seats of arbitration in China’s arbitration legal system,represented by the Arbitration Law.Additionally,concerning the introduction of temporary arbitration,it is pointed out that there are still some discrepancies between the temporary arbitration system and the overall arbitration legal system in China.This includes the fact that with the development of the times,institutional arbitration has demonstrated significant advantages in arbitration management,arbitrator training,and technical support.In the context of constructing an alternative dispute resolution mechanism in China,retaining arbitration institutions for managing various non-litigation dispute resolution mechanisms is in line with the current national conditions.Moreover,the arbitration featuring specific seat of arbitration,specific arbitration rules,and specific arbitration personnel largely addresses the dilemma of the lack of temporary arbitration in China’s arbitration legal system.Chapter Ⅴ is on “Paths of Developing the Alternative Shipping Dispute Resolution Mechanism”.First,in terms of the shipping negotiation system,the macro-level negotiation legal system should be established.In China,relevant laws such as the Civil Code and the Civil Procedure Law shall replace “reconciliation” with “negotiation”.When the conditions are ripe,China can consider formulating a specialized“Negotiation Dispute Resolution Law” to comprehensively regulate various types of negotiation behaviors.Secondly,the basic principles of the negotiation system need to be established,including the principles of freedom,autonomy,equality,non-violation of laws,and confidentiality.In the construction of the negotiation system,we should focus on clarifying suitable dispute types for negotiation,standardizing negotiation procedures,enhancing the legal effectiveness of reaching and resolving agreements through negotiation,and advocating the application of multi-level dispute resolution clauses in shipping disputes.Regarding the shipping mediation system,the author proposes the legislative approach of “adjusting shipping mediation through local commercial mediation regulations”.Firstly,it is suggested to enact local regulations with a “local legislation first” approach to accumulate experience for relevant central legislation through the demonstrative effect of local legislation.Specifically,as Shanghai has gathered a large number of high-end shipping industries and been continuously striving to deepen foreign openness and build Shanghai into an international shipping center,it is proposed to issue the “Shanghai Commercial Mediation Regulations”.Secondly,the author advocates “adjusting shipping dispute mediation through commercial mediation”.Since shipping dispute mediation and commercial mediation share similarities in nature,challenges,and mediator requirements,adopting commercial mediation rules to regulate shipping dispute mediation is a scientifically and reasonably feasible approach.Lastly,in the “Shanghai Commercial Mediation Regulations”,it is necessary to establish and detail the principle of confidentiality,implement a point-based system for mediator appointment to ensure mediator professionalism,and pilot mandatory mediation for specific shipping disputes.In the maritime arbitration system,the current focus in China’s context is on constructing seats of arbitration to become popular choices for arbitration hearings.Against this backdrop,maritime seat of arbitration construction involves creating both a supportive legal system for arbitration and world-class maritime arbitration institutions.Firstly,it is necessary to apply internationally recognized arbitration rules in free trade zones,including determining the nationality of arbitral awards based on the seat of arbitration and not considering the selection of arbitration institutions as a determinant of the validity of arbitration agreements.Secondly,judicial review powers should be delegated,and a pre-arbitration preservation system should be established to support arbitration actively.World-class maritime arbitration institutions should be built through institution construction and arbitrator training.Finally,the arbitration featuring specific seat of arbitration,specific arbitration rules,and specific arbitration personnel should be improved through policy updates,including perfecting the panel system and the enforcement system. |
