Study On The Arbitration-Mediation

The Arbitration-Mediation (hereunder referred to as"Arb-Med") procedure, as China's initiation, is originated from the arbitration practice of China International Economic and Trade Arbitration Commission (CIETAC). Such Arb-Med has been widely acknowledged and accepted by the arbitration community as new"Oriental Experience", and reflected in the recent arbitration legislation as well as the arbitration rules of worldwide arbitration institutes. Notwithstanding, there are still voices out there disfavoring the Arb-Med. There are several generic articles stipulating the Arb-Med procedures in the PRC Arbitration Law, yet it is not very foreseeable and doable. Since PRC Arbitration Law has been promulgated for over 10 years, it has been a common notion in the academic field as well as the practical field that the law shall be modified to be consistent with the China's national conditions and international trend. Therefore, the author hopes that it will be helpful in the following researches and can invite more debate in this regard. This dissertation starts up with the basic concept of Arb-Med, analyzes its fundamental notion and then articulates the rationality of Arb-med. In the end, the author addresses the pertinent improvement measures and comes up with several specific legislation suggestions.Besides foreword, the main body of this dissertation includes four chapters. The first chapter is "a general introduction to the Arb-Med", explained by three sections. In the first section, titled "a general introduction for Arb-Med to be one of the ADR's", the author firstly argues the significance for both arbitration and mediation to be one of the ADR's and analyses the concept of the two in respect of characteristic. In the following sector, "the concept of Arb-Med ", the author puts forward the issue of "Arb-Med" and defines it. Meanwhile, there's also the analysis about its feature and nature. "The international practice of Arb-Med", as the last sector in this chapter, mainly analyses the international legislation about Arb-Med as well as the relevant regulations in arbitration rules of the main arbitration institutes.The second chapter,"the fundamental notion of Arb-Med", mainly covers the principle, the distinctive function and the specific value of the Arb-Med. The first sector basic principles of Arb-Med", mainly focuses on the basic principles of this method in order for the macroscopic guiding effect towards the ongoing of the mediation. The second sector is"the study on the function of Arb-Med". Through an analysis about its function, this sector reaches the conclusion that Arb-Med can somewhat avoid the defect of arbitration jurisdiction, resolve the problem of the third party in arbitration effectively and maintain the commercial relationship between both parties. In the third sector of"the value of the Arb-Med", the author raises the value of the method which is identified as just, efficiency and harmony.The third chapter is"the controversial points of the Arb-Med"and it addresses the rationality of the Arb-med. The first sector mainly introduces the opinions of pros and cons. The second sector points out that the Arb-Med will not confuse the identity of arbitrator and mediator, or run afoul of the due process principle and will greatly enhance the capacity of disputes resolving.The chapter 4 is"the improvement of China Arb-Med institution and relevant legislative suggestions". This chapter reveals the current status of China Arb-Med institution and points out the pertinent improvement measures. The second sector describes the stipulations in the applicable laws and analyses the defect, and then articulate the basic roadmap for the law amendment from the perspective of specific article revision. The last sector firstly discusses the feasibility and necessity of enacting a comprehensive Mediation Law, and then elaborates the coordination between this Mediation Law and Constitution, Civil Procedural Law and Arbitration Law with respect to the hierarchy of legal effect.