International Commercial Arbitration Of Judicial Intervention

The dissertation begins with the relationship between court and arbitration and addresses fully the legal intervention along the process of the whole arbitration. The first part is to introduce some fundamental theories, then to illustrate the legislation and practice of some leading nations and international convention or rule, at the same time to conclude the general principle and trend of the legal intervention, the final effort is to apply the trend to promote the arbitration legislation and judicature of China.The dissertation consists of four sections besides introduction and conclusion part.Chapter one: The General Theory of Judicial Intervention in International Commercial Arbitration. It gives a brief introduction of the concept and definition of international arbitration, and demonstrates the necessity of the judicial intervention in international arbitration, the meaning of legal intervention and the choice of the intervention models .The dissertation asserts that the difference between the international commercial arbitration and the common arbitration lies in the concept of "international" and "commercial". The definition of "international" is based on both material connecting factors and the nature of the disputes, which is a multiplex test. While at the same time, UNCITRAL Model Law on International Commercial Arbitration (1985) advances a new "opt-in" test, although it is an additional method and respects party autonomy fully, it is not practicable. As for the definition of "commercial", it is connected with whether a dispute could be settled by arbitration, so the essay deems that it should expand the definition to the most extent on the base of respecting public order and social interest. The dissertation demonstrates the necessity of the judicial intervention in international arbitration from the view of the inbeing, value and object of the arbitration and the view of public order. It deems that the nature of arbitration is dual and mixed, containing contractual and jurisdictional inbeing, the value and object of the arbitration is impartiality and efficiency, the arbitrateblity of disputes and recognition and enforcement of the arbitration award is involved in public order and social interest. So, it is essentially necessary that the court intervene in the arbitration. With regard to the choice of the intervention models, the essay refuses to take for the exorbitant intervention as correct and is apt to accept the moderateintervention model; it opposes either across-the-aboard or pure procedural intervention and upholds that the intervention should be mainly on procedure, with the necessary substantive intervention as the subsidiary one. The meaning of judicial intervention in international arbitration contains both assistance and supervision.Chapter two: Legal Assistance in International Commercial Arbitration. It illustrates the assistance to arbitration in the jurisdiction, the assistance to the procedure of the arbitration and the assistance to the recognition and enforcement of the foreign arbitration award. In the field of arbitration agreement, it demonstrates the separability of arbitration agreement and the doctrine of competence/competence, and sometimes the court terminates the sue proceeding and put teeth in the arbitration agreement .As for the arbitration procedure, the court affords much assistance such as combined arbitration, the composition of the arbitration tribunal, interim measures of protection, order the witness to attest. As a civil body of settling differences, the arbitral tribunal has finished its task at the moment of making its tribunal award .Not only does it not have the duty to enforce the tribunal award, but also it does not have the power and measure to enforce it. So, the tribunal award which the loser confuses to fulfill will be in a dangerous condition of being overturned if the court does not afford help to enforce it.Chapter three: Judicial Supervision on International Commercial Arbitration. It mainly tells how an international commercial arbi...