Research On Civil Liability System Of Arbitrator

Arbitration is well known and accepted as an efficient, private and professional way to solve disputes. Good arbitrators are essential for arbitration. However, morality is far from enough for an impartial arbitration award. The parties resorting to arbitrations are eager for a liability mechanism to ensure justice. Being the most important portion of liability mechanism, setting up of civil liability provides possibility not only for restricting arbitrators’powers, but also for compensation to the Parties.However, Chinese legislation has a very rough and vague definition of arbitrators’civil liability. In practice, no civil liability has ever been imposed on arbitrators. This thesis tries to study the relevant arbitration theories, as well as China’s specific situations, and then put forward preliminary proposal for improving the civil liability mechanism.The article consists of three sections.Section One is a general review of arbitrators’civil liability. The definitions of arbitration, arbitrator and arbitrators’civil liability are first clarified. The relationship between arbitrators and the resorting parties result from the nature of arbitration and the role of arbitrators. That is, arbitrators are a party to the arbitration engagement contract, but concurrently a "judge counterpart". The obligations of an arbitrator include:independence and impartiality, disclosure of possible conflict of interest, diligent and careful, etc. Any violation of the aforesaid obligations may lead to liabilities. Liabilities include moral liability, management liability and legal liability, which can be sub-divided into administrative law liability, criminal liability and civil liability. This thesis will only study the civil liability.Section Two is theoretical and comparison study of civil liability. This section is erected on the study of nature of arbitration power. It analyzes the advantages and disadvantages of different existing theories and comes to the conclusion that arbitration power is both civil and judicial, among which civil is the base. The power of arbitrators comes from the engaging parties, and therefore arbitrators shall be civilly liable, which is a natural requirement of arbitration. This section studies the three major theories on civil liability, that is, receptum arbitri, full liability and limited liability. In case an arbitrator fails the engagement, he/she shall bear the liability of breach. In case the arbitrator violates the law, he/she shall bear the liability of tort. In the situation where there is a conflict of both breach and tort, considering the contractual nature of arbitration, the arbitrator shall bear the liability of breach. Finally, this section further studies legislation and jurisdictional practices outside of China, and comes to the conclusion that limited liability is a reasonable theory to adopt.Section Three is studies on China’s arbitrator civil liability status and improvement proposals. It first studies and analyzes the regulations in Arbitration Law and Sixth Amendment to the Criminal Law. And then analyzes the implementation status of the regulations. It is naturally concluded that improving the civil liability mechanism is essential to ensure a healthy growth of arbitration in China. Finally, proposals on macro improvement, as well as on detailed system setting are put forward.