A Study On The Judicial Supervision Of Commercial Arbitration In China

As economic globalization proceeds, International economic trade has been roaring. Commercial arbitration has been accepted as the first choice to settle various commercial disputes for its autonomy and efficiency. At the same time, the judicial supervision over commercial arbitration has been hotly debated in arbitration academic and practice field with its function on impartiality of commercial arbitration. With the development of commercial arbitration system, the judicial supervision system over commercial arbitration improve along. China woke up late to the arbitration. In fact, the arbitration system don’t develop substantially until Chinese economic reform. As a result, the development of Chinese judicial supervision lags many other developed countries. Over the past years, China signed the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, made Arbitration Law and Civil Procedure Law, and then reformulated these laws. This suggests that Chinese judicial supervision system over commercial arbitration has been developed to catch up with the pace of world arbitration improvement. However, it must be noted that the current dual-track judicial supervision system over commercial arbitration failed to meet the needs of judicial practice. As a result, the deficiency will be analyzed on the basis of introduction of the dual-track judicial supervision over commercial arbitration.The full paper is composed of five chapters.The first chapter clarifies the basic concepts such as commercial arbitration, judicial supervision, Chinese dual-track judicial supervision system over commercial arbitration under judicial supervision over commercial arbitration. Commercial arbitration award is a final decision which made by the arbitration tribunal within the authority of parties to settle part or whole of the dispute related to the business interests between the parties. The character can be learnt by analyzing this definition. Commercial arbitration itself is the embodiment of the autonomy of the commercial subject, which is contradicted to judicial supervision of compulsory. However, some arbitration characters ask for judicial supervision. Judicial supervision over commercial arbitration can be defined as follow, upon the application of the parties, People’s court review and control arbitration award in the form of cancellation or non-enforcement. Then, Chinese dual-track judicial supervision over commercial arbitration award is introduced. Under this dual-track system,the international arbitration award and domestic arbitration award are supervised in different pattern. For domestic commercial arbitration award, the People’s court review procedural items as well as substantial items. While for international commercial arbitration award, only the procedural items should be reviewed by the court. In this part, the source of law, division-standard of dual-track judicial supervision over commercial arbitration award is discussed. Then, on the basis of analyzing judicial practice, the deficiency of Chinese commercial arbitration award fall in four categories: the confusing standard on identification of foreign commercial arbitration award, the flaw on domestic substantial supervision, the confusing identification on legal procedure and the flaw of interior report system in judicial supervision on international commercial arbitration award.In Chapter II, the background and integration basis of dual-track judicial supervision system is introduced. As an institution, the judicial supervision system reflexes the economy base at that time. Knowledge of the time bound context helps to understand the advantages and disadvantages of the dual-track judicial supervision over the commercial arbitration award. Social life walks before the development of legislation. The current judicial practice is ready for the integration of judicial supervision. Moreover, the improvement of domestic commercial arbitration ask for the reform of judicial supervision system.The next three chapters analyze the three areas of Chinese dual-track judicial supervision over the commercial arbitration award in detail. Chapter III probes in the dual-track on judicial supervision content. Generally speaking, the wide-ranging judicial supervision over domestic arbitration set a strict guideline by reviewing substantial items. By analyzing the backwards if substantial items review, the legislative suggestion is brought as follows: the article of substantial review should be cancelled.The different legal standard on procedure between domestic and foreign-related commercial arbitration is discussed in Chapter IV. There is no legal standard on foreign-related commercial arbitration. However, the concept of procedure of domestic commercial arbitration is often expanded by the court. As a result, the writer advises to set the same legal standard on procedure of foreign-related commercial arbitration and define procedure strictly.Chapter V discusses the difference on prosecution procedure between domestic and foreign-related commercial arbitration. The first instance being the final instance process is the ordinary pattern. However, a distinctive interior report system which is full of defects is set on international commercial arbitration award in Chinese law. By analysis, it is advised to set an integrated prosecution procedure for judicial supervision.