On The Judicial Supervision Over International Commercial Arbitration

The arbitration is one kind of institution form that solves the dispute outside the jurisdiction. Today, the world economics are globalization. The international commercial arbitration which is a commonly used way solving the international dispute by its quickness, flexibility, security, autonomy and so on the characteristics has won the litigant's universal favor, and obtained the considerable development in the international society.Arbitration has close relationship with judicial activities of court. Arbitration is inevitably brought into the line of the national legal system in the society governing by law, and through the country judicial organ's supervision to overcome the flaws which arbitration system itself exists, thus fully display the superiorities of arbitration system. The judicial supervision over arbitration is the choice of history development. How to settle the relation of arbitration and judicial organ's supervision is an important thesis that combines both the theoretical value and practical significance.On the one hand, arbitration can hardly move on without judicial supervision; on the other hand, excessive and unnecessary interference and control from court may impede or even stifle the development of arbitration. What the arbitration really needs is the appropriate and moderate judicial supervision. The judicial supervision of our country's arbitration touching on foreign affairs has many problems in the legislation and the judicial practice. Which are in dire need of being perfected. The interpretation of the Supreme People's Court concerning some issues on application of the arbitration law of the People's Republic of China has remedied some deficiencies of our country's law regulation. It indicates currently our country's new standpoint on judicial supervision over arbitration touching on foreign affairs.Except foreword and concluding remarks, there are four parts in this article.First part discusses the basic theory of judicial supervision over international arbitration. The author analyses the concept of judicial supervision over international commercial arbitration, then puts the importance on the analysis research to the theoretical gist of judicial supervision over international commercial arbitration. Firstly , Looking fundamentally, just the nature of international commercial arbitration decides the necessity of the existence of judicial supervision. There are four kinds of standpoints that are widely accepted by people. They are Contractual Theory, Jurisdictional Theory, Autonomous Theory and Mixed Theory. On the basis of the four theories, the author proposes that the contract is the essential attribute of international commercial arbitration, and the judicature is the inferior attribute of international commercial arbitration. Secondly, the arbitration's pursuits of value are also the important reason why the judicial supervision exists. At the same time, the maintenance of public interests is need of judicial supervision over international commercial arbitration.Although arbitration needs the judicial supervision of the court, then in what kind of degree should the court implement the supervision? This involves the pattern of the international commercial arbitration judicial supervision. This is introduced in the second part. There are different opinions of whether the court can supervise entity aspect or not. In our country, there are two opinions of the judicial supervision pattern, namely,"the procedure supervision"and"the whole supervision". The author deems that excessive and unnecessary interference and control from court may impede or even stifle the development of arbitration. What the arbitration really needs is the appropriate and moderate judicial supervision. Then, the article introduces the conception and analyses the scope and application condition of appropriate and moderate judicial supervision. Look back the development history of the arbitration system, we find that appropriate and moderate judicial supervision is the impersonal choice of history.After the supervision pattern has determined, the third part talks about the supervision institution and the supervision mode. The author deems that it should reduce the judicial supervision of the country making the ruling, and cancel judicial supervision of the country whose law are rested on by the ruling. And the supervision function should be transferred to the acknowledgement and the execution country of ruling. Then, the author analyses the mode international commercial arbitration judicial supervision from three aspects, namely, judicial supervision over arbitration agreement, judicial supervision over arbitration procedure and judicial supervision after making the ruling.The final part of the article is about the revision and development of our country's foreign-related commercial arbitration judicial supervision system. After analyses the flaw of our country's commercial arbitration judicial supervision system touching on foreign affairs from three aspects, the author proposes the suggestions about how to perfect our country's foreign-related commercial arbitration judicial supervision system. The main representation of development of our country's commercial arbitration judicial supervision system is the interpretation of the Supreme People's Court concerning some issues on application of the arbitration law of the People's Republic of China. The interpretation put in force on 8th September, 2006. It has remedied some deficiencies of our country's law regulation. And it prescribes more clearly on many questions which exist in the activity of arbitration judicial supervision. This article illuminates the principle that people's courts support arbitration development from three aspects, which include the cognizance of arbitration agreement's effectiveness, revocating the arbitration ruling and executing the ruling. Especially in the aspect of cognizance of arbitration agreement's effectiveness, the judicial interpretation embodies that people's courts are fully to respect the litigant's autonomy of will, and confine strictly to the cases of invalidation of arbitration agreement. Form the interpretation, we can find the development trend of our country's commercial arbitration judicial supervision system touching on foreign affairs, namely, our country's courts take easy and supported attitude to foreign-related commercial arbitration, and our country's courts has reduce the scope to censor foreign-related commercial arbitration.