| The golden age of electronic commerce has come with the fast process of global incorporate economy and the flourishing internet technology. The trade of electronic commerce between countries all over the world has increased dramatically and online dispute has arisen from this phenomenon. Electronic commerce requires a corresponding dispute resolution method that keeps the pace of the development of electronic commerce. Electronic commerce is conducted through the Internet, which is by itself naturally the most suitable medium for dispute resolution. Traditional arbitration must cater to the needs of electronic commerce, and thus online arbitration is the offspring of modern e-trade. As an efficient and convenient solution to online disputes and a combination of predominance of the internet and arbitration, online arbitration has corresponded to the demand of era and embodied the ideal pattern of dispute resolution and developed orientation in modern commerce since its birth. As the medium on which online arbitration process is different from that of tradition arbitration, online arbitration has met with lots of legal problems in practice. It will benefit the practice and development of online arbitration in our country through research these legal problems theoretically and practically and further more make some legal opinions and solutions.This thesis mainly adopts the investigative methods of empirical analysis, comparative analysis and put theory into practice, it is composed of 4 sections, over 30,000 words, covers the issues of origin of online arbitration and its evaluation, the form of online arbitration agreement, confirmation of the place of arbitration, construction of the online arbitration system in our country.SectionⅠ: Online Arbitration Summary. On the basis of the research of the development of the information industry and the conventional arbitration legal system, this section summarizes the definition of the online arbitration and point out that this definition should be wide. The definition of online arbitration is the whole or part of process being done online through high-tech measures like chat room, instantaneous communication process(eg.MSN), long-distance communication measures(eg. videoconference by network). Then it analyses the character of online arbitration, including recur to internet, depend on internet technology and mainly resolve ecommerce disputes. Next, according to the background and the status of the dispute resolution system, this section summarizes the origin and the corresponding practices of the online arbitration. Finally, evaluate online arbitration and point out its advantages and disadvantages of the cyber arbitration.SectionⅡ: Online Arbitration Agreement. This section mainly discuss the online arbitration agreement whether accords with the written format requirement and issue of electronic signature. Firstly, clarify the definition of arbitration agreement and its effective qualifications, then discuss the issue of the written form of online arbitration agreement, point out that online arbitration agreement is an arbitration agree which is done through the internet in electronic form dealing with the matter of submission of dispute to arbitration, but according to the provisions in most domestic arbitration laws and the relevant international conventions such as the New York Convention, it is the legal format requirement that an arbitration agreement shall be in writing. It deserve investigation on the matter of whether the electronic online arbitration agreement meet the requirement of written form. The author reckons that online arbitration agreement can have the same functions and effects of writing as a traditional arbitration agreement, so as to achieve the objectives of the lawmakers on the written format requirement of traditional arbitration agreement. Further more, UNCITRAL Model Law on International Commercial Arbitration and Model Law on ecommerce accept that the electronic agreement is the written form. So we believe it to be a most reasonable conclusion that an arbitration agreement and in the digital form satisfies the format requirement of writing in the legal traditional arbitration. The requirement of writing is usually accompanied by that of signature and New York Convention clearly required that a contract with an arbitration clause or a separate arbitration agreement be signed by the parties. Traditional signatures are mainly useful in, first, showing that the sign confirmed his consent to the contract and second, confirming the completeness document and specifying the parties. The author deems that electronic signature fulfills all the functions of a signature to confirm the completeness of a document, the parties and the content of information.SectionⅢ: The Place of Arbitration in Online Arbitration. This section mainly discuss the criterion of the confirmation of the online arbitration place. The important functions of the place of arbitration lie in that it associates the arbitration activities with the legal systems of a specific country. The law of the country at the place of arbitration granted a legitimate status to the arbitration procedures and bestowed the finality and legal enforceability to the arbitral awards. The Internet does not exist in a location or space of the physical world, therefore, online arbitration does not have the so-called "place of arbitration". This means that the online arbitration procedures cannot be associated with the legal systems of a specific country so as to acquire the support of the laws of this country and ensure the legitimacy of the arbitration procedures and the legal enforceability of the awards. Many scholars bring forward lots of different criterions including the physical location of the server criterion, the location of the owner or controller of the URL criterion, the location of the arbitrator sending or receiving e-mail criterion, the geographical location of the arbitrator or the presiding arbitrator criterion, denationalised arbitration, the arbitration seat theory. The core of the denationalized arbitration theory is that international commercial arbitration does not need to rely on the laws of the country at the place of arbitration; instead, it can be independent of the national laws of any countries and free of the judicial supervisions of the courts in any countries before seeking recognition and enforcement of its arbitral award. The author reckons that online arbitration should acclimate the trend of virtualized the place of arbitration and use the arbitration seat theory to confirm an online arbitration place which suits the need of the case. The arbitration seat is the legal location of arbitration. It is different from traditional arbitration, the arbitration seat does not embody and emphasize the impersonal relation between the process of arbitration and the given place, contrarily it embody and emphasize the relation between the process of arbitration and the legal system in particular. Therefore the practical and feasible solution for the place of arbitration in online arbitration is the legal virtualization of the place of arbitration according to "the seat theory", with the virtualized legal location as the place of online arbitration.SectionⅣ: Construction of Online Arbitration System of Our Country. This section mainly discuss issues about the comparison of extant legislation of our country and online arbitration, advice on the construction of online arbitration system of our country. Firstly, review the legal system of arbitration in our country and then research into the legal resources which can be utilized by online arbitration. On this basic, make six suggestions to better construct the online arbitration legal system, such as enlarge range of arbitral matters, stipulate the competence of the parties signing up an arbitration agreement, introduce the arbitration seat theory, entitle the parties to the right of making agreement on the procedure of arbitration, perfect the relevant laws. |
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