Research On Judicial Supervision Of Civil And Commercial Arbitration

As a kind of ADR (Alternative Dispute Resolution), civil and commercial arbitration finds popular favors in people and plays a more and more important role because of its distinctive merits such as the arbiter's stronger independence, the party's self-determination, and the finality of "one arbitration as final", the simplicity of procedures and so on. Though its basic spirit lies in the independence and considerable discretion, the system of arbitration is deemed to be supervised and limited by the nation's jurisdiction because of its quasi-judicial characteristic. In the meanwhile, the authority of judicial supervising over arbitration has the risk to execute improperly without any restriction and what's more, it may conflict with the essence of arbitration system and the civil jurisdiction mechanism. In a word, to ensure the balance between the judicial and arbitral bodies on dispute resolution, we should be directly faced to the existent problems and reform our judicial supervising system over arbitration.This thesis is written under this guideline and divided into four parts. In part one, with the concept of "civil and commercial arbitration's judicial supervising" from broad and narrow aspects to start, I have analyzed the external factors and its own limitation of the arbitration, and then summed up the indispensable necessity and properness of judicial supervising. In part two, I have introduced and compared the advanced arbitration experience of foreign countries mainly from Anglo-American Law System & The Civil Law System as well as the Japanese Legal Family System and then analyzed the development trend of arbitration in order to find the constructive way to perfect our own arbitration's judicial system. Part three is the most important one in which I have discussed the current situation of our arbitration's judicial supervising system from legislation, theory to practice with focus on the limitation and shortcomings in legislation and law practice. At the practical aspect, the existent problems have been put forward by the way of case analysis. Moreover, a summary of the research achievements from the academic circles is made through which I do a further classification and detailed clarification. It lays a stronger foundation for the next part. In part four, on the basis of the present status analysis and previous argument, I put forward some constructive suggestions for the improvement of commercial arbitration's judicial supervising so as to straighten out the relations between the court and arbitral body in accordance with international trend, which is the main objective as well as the meaning why I write this thesis.