On The Commercial Arbitration Judicial Supervision System Perfect

Commercial arbitration has existed with the appearance of the commercial activities, as an no-litigation dispute settlement in commercial area, compare with the litigation settlement, it is independent, efficient, self-governing and timely in advantage, it plays an very important role in the modern society, it has been recognized in the international world as well, it also has been accepted and chosen frequently by the citizens in our country. With the fast development of commercial arbitration, the issues of juridical supervision in arbitration by court become outstanding. As in our country, the civil procedure law in 1991 has deal with part of the issues of the juridical supervision in arbitration; the arbitration law in 1994 has prescribed more specific provisions related to juridical supervision in arbitration. The Highest Court has published《The Explanations of some issues about applying the Arbitration Law》in 2006, it indicates that the court support the arbitration in the aspect of juridical supervision, it has enhanced the operational point in procedure, but it is not follow the steps quite well by far, and it is not so mature as it is required to in reality. The juridical supervision in arbitration by court is not only related the relationship between judicature and arbitration, but also related to the attitude that our country on arbitration, related to the development and modification of arbitration system in our country, and related to the shape of judicature. As for this, the research on juridical supervision in arbitration has profound meaning in theory and in practice, it is and eternal topic. This essay will discuss the situation of judicial supervision in arbitration and the issues how to consummate it through these five chapters in detail. In the first chapter, it summarizes the judicial supervision in commercial arbitration. It begins with the definite definition of arbitration, commercial arbitration; juridical supervision system in commercial arbitration, it combines with the definition of commercial arbitration in foreign countries and in our country to explain the definition and meaning of commercial arbitration in general. It indicates the definition of the juridical supervision in commercial arbitration is the court examine the validity of arbitration agreement (clause), jurisdictional objection, evidence save from damage, property save from damage, enforcement of arbitral award, then make the decision to support and assist or not. At the same time, it analyzes the essential of the juridical supervision in commercial arbitration from some aspects, including the essence of arbitration, the limitation of arbitration system, the advantages of juridical supervision and non-juridical supervision, the situation and development of arbitration activities.In the second chapter, it analyzes the legislation of judicial supervision in arbitration in some foreign countries and in International Commercial Arbitration rules. After observing the provisions in UK, US, Germany, France and International Commercial Arbitration rules, it makes a conclusion that wherever in different counties or in international arbitration rules, as for the judicial supervisions arbitration, the trend of arbitral legislation only inclines to judicial supervision the arbitral procedure factors, the only exception that judicial supervision the arbitral substantial factors is the situation that it disobey the public policy, and it also inclines to reduce the scope of judicial supervision in arbitration. Compare to the arbitral legislation in our country, it obviously has definite gaps and differences. In the third chapter, it analyzes the situation and practice of judicial supervision in arbitration of our country in order to find out the limitation of legislation related to the judicial supervision in arbitration, it leads to lots of problems, such as problems in arbitration agreement (clause), jurisdiction, the different examination standards of enforcing arbitral awards that with or without foreign parties, for it carries out"double track", cancel or not enforce arbitral award both exists, for the"double judicial supervisions"brings the conflicts.In the forth chapter, it provides the suggestions of designing a consummate judicial supervision in arbitration in our country. The writer summarize the practice of judicial supervision in arbitration, find out some problems of judicial supervision in arbitration by court, and give some suggestions to improve the judicial supervision in arbitration system, includes: Firstly, as for the problem that it is hard for court to define the jurisdiction that which court to examine the validity of arbitration agreement (clause), it should increase provisions about jurisdiction, and confirm that arbitration tribunal has right to rule the validity of arbitration agreement(clause) and jurisdiction, and the parties should made the objection before the start of the first hearing of the arbitration tribunal. Secondly, in order to avoid delaying time by the parties, and ensure the safety in arbitral award, associate to the efficient in arbitral procedure, it should shorten the period that parties'objection and apply to cancel the arbitral award; Thirdly, the judicial supervision in arbitration should be"measurable", so it should cancel the examination of the substantial factors in judicial supervision in arbitration. Fourthly, it should assort with the system of cancellation and non-enforcement of arbitral award, and confirm that the cancellation of arbitral award be the only way of judicial supervision in arbitration, but non-enforcement of arbitral award only used in the arbitral award that contains foreign parties. Fifthly, as for the problems in the judicial supervision in arbitration, combine with the disputes in practices, because there are few specific provisions in this area, it also find out the problems and give some suggestions on confirm the parties, mode of hearing and arbitration fees.In the fifth chapter, it makes a conclusion. It makes the research on the legislation and judicature in theory and in practice to construct the perfect frame of judicial supervision in arbitration, for it will promote the healthy and persistent development of arbitration activities in our country.