Judicial Supervision Over International Commercial Arbitration

The relation between the domestic court and the international commercial arbitration is a hard question with not only theory significance but also practical value, which has continuously received universal attention from domestic & foreign theories and practices. As far as the legislation and practice of international arbitrates go, the relation between the court and the arbitration approximately has experienced the process of no intervention to excessively intervention again back to moderate surveillance. At present, although all the countries have a common tendency to weaken the court surveillance to the arbitration but strengthen the support to the arbitration when they establish the rules related to domestic court and the international commercial arbitration, the domestic and overseas academic circles still have different opinions on such relation considering fi'om the macroscopic elementary theory or the microscopic institution. On macroscopic says, there are disputes on the elementary theory whether the domestic court needs to supervise the international trading arbitration; if yes, in what kind of degree the domestic court should supervise the international commercial arbitration. On microscopic says, different countries have various processes in the validation of judicature examination to the international commercial arbitration agreement; the intervention and the assistance to the international trading arbitration procedure; the cancellation and the execution to the international trading arbitration ruling; as well as the acknowledgement and the execution to the foreign arbitration ruling and so on. Our country starts international trading arbitration legislation very late. Many stipulations are dispersible and frail especially the relation between domestic court and international commercial arbitration. There is big disparity between our concrete systems and the world advanced legal regulation. Therefore, it has brought puzzles and disputes of understanding and applicability in the judicial practice to the related questions. In view of the above questions, this article would make a systematic discussion and research.The structure of the article adopts the method of going forward one by one. Through analyzing what the relation between the domestic court and the international commercial arbitration should be, comparing the concrete system of general international trading arbitration judicature surveillance, this article analyze what the relation between our domestic court and the international trading arbitration actually is; is to post the questions that exist in the international commercial arbitration judicature surveillance system of our country; has some benefits to the relation consummation between the domestic court and the international commercial arbitration. Besides the introduction, this article is divided into five chapters. Abstract is as follows:The first chapter is the basis of judicial supervision over the international commercial arbitration. This chapter obtains from the international trading arbitration nature, through the analysis of arbitration nature; the basic value goal of the arbitration; the arbitration power and litigant meaning autonomous limitation and the court national compelling force, it elaborates why the international trading arbitration needs the court supervision. Afterwards take "the New York Joint pledge" and "International Trading Arbitration Demonstration Law" the two most important international joint pledge as well as our country home method as the example, separately has expounded from two angles of the international law and the domestic method where the jurisdiction originate from that the court supervises the international commercial arbitration. The conclusion is the international commercial arbitration can not leave the court surveillance apart whether from the law theory or from law basis.The second chapter elaborates the scope of the international trading arbitration judicial supervision. The first section of this chapter introduced the two-track system of the international commercial arbitration. The second section is restricted to the popular theory in view of the domestic court to the international commercial arbitration surveillance, performs to the domestic and foreign scholars' argument to introduce and the elaboration, finally from respects the litigant meaning autonomous as well as the maintenance arbitration efficiency and the fair balance angle, proved the court in principle not to examine the arbitration entity but to be allowed to expand the surveillance entity content in the litigant agreement foundation the rationality.The third chapter is the certain concrete systems that the court supervises the international commercial arbitration. This chapter is for the purpose of introducing and the analysis various countries stipulated to the international commercial arbitration judicature surveillance legislation, as well as on international general concrete surveillance systems. From the generalized has analyzed the court to the international commercial arbitration judicial surveillance system, thought this kind of inspector general including to the arbitration agreement judicial examination, to arbitrate the procedure the judicial involvement and to arbitrate the ruling and the judicature to investigate.The fourth chapter describes the judicial supervision that our domestic court to the international commercial arbitration. This chapter mainly unifies our country the judicial practice to elaborate our country to carry on the question to the international trading arbitration which the judicial surveillance in the legislation practice as well as some concrete systems existed. Our country legal rule international commercial arbitration judicature surveillance mainly has the confirmation to touch on foreign affairs in the case arbitration agreement potency, the property preserves with the evidence preserves, the cancellation touches on foreign affairs the commercial arbitration ruling, rules does not give carries out the international trading arbitration ruling and carries out and refuses to carry out and so on the form to the foreign arbitration ruling acknowledgement. Nearly all questions states which to this chapter, in compares the third chapter of institute to elaborate overseas and in the international general related stipulation foundation, the author had pointed out our country judicature supervises in some concrete systems the insufficiency.The fifth chapter elaborates the questions that exist and the consummated suggestions in our country international commercial arbitration judicial supervision. This chapter first unifies in the fourth chapter to our country international commercial arbitration judicature surveillance system analysis elaboration foundation in, further summarized in our country international commercial arbitration judicial supervision question and the flaw. The second section proposed some legislations and the judicial suggestion in view of the above question consummates our country international commercial arbitration judicial supervision.