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On The System Of Implied Waiver Of Arbitration

Posted on:2011-01-09Degree:MasterType:Thesis
Country:ChinaCandidate:D X ZhuFull Text:PDF
GTID:2166360305481347Subject:Civil Procedure Law
Abstract/Summary:PDF Full Text Request
Implied waiver system is the arbitration of a challenge relating to waiver of the right of the procedural system. Under the law of arbitration the parties have the jurisdiction of arbitration, the validity of arbitration agreements, arbitration awards such as the right to object, at the same time, in order to prevent delays in the procedure and the opposition party's rights against and many national laws of arbitration dispute set the waiver of right to object and implied waiver of system. In China, the arbitration law that could challenge to the validity of the arbitration agreement, but finds that the implementation of the main body of the arbitral tribunal and the court's permission to co-exist, that is, the intervention of the courts of judicial review in advance the time. Arbitration Act 2006, the latest judicial interpretation of the provisions of the parties have not challenged within a certain period of time deemed to have waived the right to dissent, abstain from the consequences can not be invoked in the future the right to make such a decision to withdraw the application, thus, China introduced a system of implied waiver. However, this writer through the analysis, comparison methods, with the international common practice study found that there are still some differences, manifested in: The grounds is too narrow that you can implied waiver of the reason; does not set the waiver of right to object in law of arbitration; to object or implied waiver of the validity of arbitration agreement period with the international practice are different; opposition in the arbitration proceedings, many of the victims is unclear may waive the right to object or vice versa, the abuse of dissent rights; the other hands, the administration of justice abstaining organizational forms and review procedures provided is not enough clear, direct impact on the system integration and implementation seriousness.This paper describes the following basic ideas:(1) Implied waiver system based on equity theory and the adversary system of justice the parties have the right to dispose of their rights; (2) The parties wish to raise a dissenting voice? Or the presumption that a party to judge whether the choice implied waiver of the right to object to the premise and an important symbol. Therefore, the implied waiver of the act will be placed in proceedings to challenge the circumstances, or will apply for revocation of the award procedures in the circumstances; (3) Should be the composition of the arbitral tribunal and arbitration proceedings inconsistent with the agreement of the parties, as may be silent abandoned by the applicants indicate the reasons for setting aside an award; (4) should be to establish competence-competence principle, the parties disagree, they can request the arbitral tribunal decisions. But not at the request of the court before the end of the arbitration proceedings to review, you can set aside or enforcement procedure to apply. (5) Should be set the waiver of right to object and dissent or implied waiver of the deadline to make adaptive adjustments. (6) Should be to establish a relief system of arbitral awards to object.Full-text totaled about 41000 words, text around 33000 the word. Is divided into five parts:What is implied from the first chapter, challenge, opposition privilege, the right to abandon the opposition start to define the implied waiver of the system, the existence of implied waiver of the behavior of the parties is determined by the rule of law drawn from the presumption, and the presumption of both the Civil Procedure Law different from the same point again.Chapter II from a historical perspective of evolution of the implied waiver of the three major theoretical foundation for the system proposed implied waiver of the system is the principle of estoppel in the arbitration law, an extension of the two share common values, and party autonomy is a prerequisite for the implied waiver system, the parties have the right to dispose of their own.Chapter III, and our country through the analysis of foreign arbitral jurisdiction of the main differences identified, elaborated a view on competence-competence principle, in full swing to raise objections or implied waiver of the dispute process, explore the content and process, including the administration of justice review the scope and procedures, using case studies implied waiver of the legal consequences and effects.Chapter IV pointed out by the arbitration body made a determination of validity of the arbitration agreement is China's characteristics, at the same time, dissent or implied waiver form is composed of desirable judicial tribunal, and asked the parties adopt a hearing procedure, proposed implied waiver of system problems.Chapter V analyzes the cause of china's implied waiver of system problems, they should be to change the thinking our arbitration legislation, the proposed right of implied waiver of objection to the correct choice of the structural model, and improve the implied waiver of the arbitration system, legislative recommendations.
Keywords/Search Tags:Opposition privilege, Implied waiver of the right, Objection procedure, System
PDF Full Text Request
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