The Third Party In International Commercial Arbitration

With the development of international commercial activities, international commercial disputes are becoming more and more complicated, so the international commercial arbitration is becoming more and more complex too. There are always three parties and even more parties are involved in one dispute. It is not enough if just ask the two parties who signed the arbitration to join in the arbitration. The proposal of introducing the third party into international commercial arbitration has attracted worldwide attention as soon as it was put forward. World legal theory communities raise all kinds of opinions to support or against the proposal. This thesis gives a positive answer to this question, from both theoretical and practical aspects to describe the necessity and possibility of this proposal and points out the problems that may exist after the join of the third party, and analyzes how to solve these problems.The thesis is divided into 4 chapters. It's necessary to understand the origin of the concept of the third party and its development first, in order to study the third party problem in international commercial arbitration. Therefore, the first chapter introduces the third party system which starts from civil litigation system and its reasonable existence, then compares the third party in civil litigation system and international commercial arbitration. Both of them are dispute resolution systems. Because of the nature of the two are different, there are some differences between them. Such as their effects on the procedure, the rights and obligations of the third party. Legal scholars all over the world define the third party in different ways. There are two main definitions; one of the two is that: scholars divide the third party into three aspects, the third party in the agreement of arbitration, the third party in arbitration procedures, and the third party in the implementation of arbitral awards. The other main definition is based on the third party in civil litigation system, divides the third party into the third party with independent rights of claim and the third party without independent rights of claim. Author thinks that the first point of view expands the scope of the third party in arbitration, the second viewpoint is reasonable in a certain degree, but it doesn't notice the differences between the third party in civil litigation and the third party in arbitration. After analyzing the two main views, author points out the essence of the third party in international commercial arbitration.Chapterâ…¡lists several theoretical disputes about the third party in arbitration and analyzes the advantages and disadvantages of each opinion to provide theoretical support. Supporters raise quasi-judicial theory, differential treatment theory, group theory and so on to support the introduction of the third party to arbitration; opponents reject from the confidentiality and economy of arbitration and autonomy of will of the parties. Author makes a comment on a variety of assessments and figures that introducing the third party into international commercial arbitration will not affect the confidentiality and economy of the arbitration, and gives a theoretical support from the expanding effectiveness of arbitration agreement and the new explanation of autonomy of will. The continuous expansion and distension of arbitration agreement effectiveness, in some cases make the non-signatory party; the third party can also be bounded by the arbitration agreement. The goal of the international commercial arbitration is to pursue the fairness and effectiveness. In order to resolve their disputes as quickly as possible, the parties choose arbitration because of its fairness and effectiveness, not because of the autonomy of will. So, the autonomy of will of the parties is not everything. The autonomy of will we talk about is not entirely self-governing autonomy, it should be limited in someway. In addition, the third party join in the procedure of arbitration can accelerate the resolution of the disputes, and resolve the disputes completely without the assistance of another civil litigation procedure. So author gets a conclusion that the third party to arbitration not only has its theoretical foundation but also has necessity.In Chapterâ…¢, author studies and compares the related legislative breakthrough about the third party in arbitration in some countries and arbitral institutions, points out that in China the independent status of the third party to arbitration is not admitted through the analysis of the legislation in China, the arbitral rules of some arbitral institutions and judicial practice. Netherlands, Belgium, France, the United States and other countries endow the third party in arbitration some degrees of rights and prescribe its corresponding obligations in their national legislation. Japan Commercial Arbitration Association, LCIA, the International Court of Arbitration of the International Chamber of Commerce and other arbitration institutions admit the third party in arbitration both in arbitration rules and arbitration practice. In the thesis author also lists some typical cases to state the existence of the third party. China's"Arbitration Law"doesn't make any prescriptions for this issue. A case announced by the Supreme People's Court indicates that the concept of the third party in arbitration is not accepted. Some arbitral institutions modify the rules of arbitration in order to adapt to the development of the situation, which gives living space to the third party in arbitration. But from an overall point of view, our country holds a very cautious attitude towards this problem.Chapterâ…£figures out the problems that may exist after the third party join in the procedure of international commercial arbitration, such as who has the rights to decide the join of the third party, how to guarantee the confidentiality of arbitration and so on, and then gives relative resolutions to these problems. Firstly the author discusses whether the third party can join in the ongoing arbitration procedure when two parties and the third party itself agree or disagree to join in. At the same time, author points out that the right of making final decision should be exerted by arbitration tribunal. This is determined by the judicial nature of arbitration. When the third party join in the arbitration proceedings, it is not necessary to re-appoint the arbitrators or reform the arbitration tribunal if the arbitration tribunal has formed. If the arbitration tribunal hasn't formed when the third party joins in, as a party in the arbitration the third party have the rights to appoint the arbitrators. And the third party should sign a written agreement with the other two parties when join the arbitration. At last, in order to assure the confidentiality of the arbitration, a confidentiality agreement also should be signed by the third party and the other two parties.The conclusion part summarizes the problems of the third party in arbitration, once again points out the theoretical and practical possibility of the third party joining in the international commercial arbitration. China also should abandon the old concept, adapt to the trends of social development. Author wishes to make a reference for the introduction of the third party in international commercial arbitration in China.