| Arbitration as a method to resolve dispute, its existence and development is out of state's legal regime. Countries have adopted laws and regulations arbitration system be adjusted later to occur only in modern times. Since state laws of arbitration to conduct an overall adjustment and control over it, arbitration has been not suitable for all types of disputes resolved only within the framework of national recognition of the arbitration to obtain legal status. In view of the arbitrability, so closely related to the validity of the arbitration agreement and the jurisdiction of the tribunal, the decision, and the recognition and enforcement of adjudication, which is the key to International Commercial Arbitration The arbitrability of the development trend and the reason that contributed to this trend is probably more fundamental and important issues.The full text is divided into four parts, as follow:The first part is a summary of arbitrability. It clarifies the meaning of the arbitrability before the theoretical analysis of the development trend of international commercial arbitrability. Based on the purpose of this article, the so-called arbitration in this text means objective arbitration, under a law, the dispute between the parties which can be submitted to arbitration issue. Will be the question of arbitration is performance, States were also in accordance with its own history, culture and external economic and trade exchanges, the legal environment, as well as the attitude of arbitration and other factors tend to arbitration through arbitration legislation to limit the scope of application. Arbitration and can be closely related to public policy, which led to easy understanding of the concept of the two confused. I think that, despite the arbitration and can be closely connected to public policy, but there are still differences between the two, will be attributable to the arbitration of public policy in areas of public policy and even the same is not appropriate. Arbitrability of the main criteria for judging can be contentious and controversial, can be controversial reconciliation, the controversial commercial, property disputes, controversy is involved in public policy.The second part carding arbitrability is the trend of the performance. With the international commercial activities to the depth and breadth of development, not many of the traditional arbitration matters can be settled through arbitration or arbitration is to be the direction of evolution. This makes the practice of international commercial arbitration, and arbitration is an issue of the development trend of continuously expanding, and the countries concerned on the following types of controversial issues of arbitrability of the attitude change, in varying degrees, and reinforces this confirms kind of trend. First, in the field of intellectual property, arbitrability mainly refers to problems involving patents, trademarks, copyright and proprietary technologies, such as controversial. For a very long period of time, the international community has been controversial intellectual property rights issues of arbitrability of a negative attitude. But with the increase in intellectual property disputes, the situation has undergone great changes. States usually distinguish between different types to adopt different policies. On the controversial copyright and proprietary technology, the practice of States that are generally can be arbitration. Second, the existing law in most countries of the securities arbitration of the dispute may not make a clear, still adopting a strict restrictions on the position. But in the United States under the influence of judicial practice, many countries have also gradually relaxing on the very securities transactions is limited in the arbitration. Third, the anti-trust issue is not only related to the interests of clients, but also related to the maintenance of market competition order, and the country, society is closely related to the interests of the public, whether it is arbitrability has become a major concern. Under the influence of the United States, many countries have relaxed the antitrust arbitration of the dispute may be restricted. Fourth, there has to a discriminating bankruptcy controversial trend, although the latter may still have arbitration of the negative attitude, but has gradually accepted the former arbitrability. Fifth, along with economic development, international commercial arbitration has made rapid development in most countries of consumer arbitration of the dispute may be gradually relaxed the restrictions, allowing consumers and businesses to resolve disputes through arbitration agreement. The third part launches cause analysis of the development trend of arbitrability. First, from the multi-the establishment of mechanisms for dispute settlement inspection, multiple disputes settlement mechanism makes the establishment of a single people is no longer choose to use litigation to resolve disputes. As litigation and dispute resolution in the most important way, the scope of arbitration to resolve disputes growing, it indirectly promoted the arbitration of the state's intervention could weaken the trend. A wide range of dispute resolution mechanism for the dispute settlement mechanism of a single case of a lot of the reasonableness of the factors in the development of society is an inevitable choice. Human society is always full of complex conflicts of interests, the interests of different groups always in collaboration with the endless struggle, they need through a selection of the most reasonable balance of interests mechanism to express their interests and demands, so that all The competing interests to the interests of the relative have been met, so as to these social forces in the conflict and competition in order to find the most reasonable arrangement. From the diversity of the functions of the dispute settlement mechanism and value terms, that is the actual goal of resolving disputes in order to achieve this goal, as well as a means of diversification, and a more reasonable factor. The inherent drawbacks of proceedings inherent pluralism and dispute settlement mechanisms established by the objective driving forces. Arbitration in a fair value for the basic goal is a diversified the establishment of mechanisms for dispute settlement provide indirect support. International Commercial Arbitration will be fair and effective reunification of the two values in which, but fair is the largest of the basic values goal is to arbitration as a civil nature of the conflict-of-laws relief mechanism for its existence and vitality of the foundation. Arbitration as a means of dispute resolution, but in fact the case between the parties is a reasonable allocation of procedural and substantive rights and interests of the process, which will essentially require just as its highest value target. International Commercial Arbitration of the issues of arbitrability of its value is closely related to the goal. In recent years, national legislators and the judiciary, the International Commercial Arbitration in-depth understanding of the value of a goal, and gradually trust the fairness of the arbitration, relaxed the restrictions on the scope of the arbitration. Secondly, from the will of the state analysis, however, even a country in its legislation used alone or at the same time several other standards, public policy is the practice of always adhere to the guidelines - in a specific case, if permitted under other standards certain disputes referred to arbitration will lead to a State of the basic principles and social interests of the major violations, the court would not hesitate to give priority to public policy standards to exclude the controversial arbitrability. Contrary to public policy has become a controversial issue can be ruled out arbitration of one of the standards, strict application of public policy will inevitably lead to the imposition of restrictions on the scope of arbitration reduced accordingly. State public policy will be controversial matters as whether the arbitrability of transparency standards are based on the arbitration unable to preserve the public policy of this understanding on the issue. The author believes that this view is itself questioned the need. State restrictions involve public policy to resolve disputes by arbitration, and its settled by the court, but safeguarding public policy alone is not an institution (the court) can be completed, and we must rely on the law. Arbitration is essentially arbitration in accordance with the law, that is to say, arbitration can also safeguard public policy. Third, the nature of proof from the arbitration, both judicial arbitration, leases and autonomy of the International Commercial Arbitration of these three attributes can be directly determined in arbitration to resolve the dispute must be within the limits prescribed by law, and the extent of gradually expand. Arbitration judicial power is expressed in arbitration from the laws of the state and authorized by the law. Arbitration also demanded that the autonomy of the arbitration relax control. Arbitration is the essence of contractual arbitration, which means the real meaning of autonomy is the personal will of the parties to respect and the rights of individual.Part four introduces our legislation on the arbitrability that responses the development trend of the arbitrability. First of all, China's legislature adopts a model that combines a positive generation with negative numeration .However, the dispute referring to marriage, custody, support, inheritance disputes and handled in accordance with the law by the executive can not be referred to arbitration. For other special contentious issues is the issue of arbitration, "Arbitration Act" there is no specific requirement, and leave it to deal with relevant laws and regulations. In general, these provisions are not uniform and in principle, there are many problems. First, China's Arbitration Council will be able to arbitration dispute confined to the "contract dispute" and "other interests in property disputes". Second, China's "Arbitration Law" three provisions of the first marriage, adoption, guardianship, maintenance, inheritance disputes can not exist under arbitration. Third, the judge can be a single standard of arbitration, resulting in relatively narrow scope of the arbitration, the dispute may be a special issue of arbitration shall not limit or more clear. Thus, in the arbitration of China on the issue of legislation and practice with the international common practice is basically the same, but there are also inadequate, some practices and the development trend of international commercial arbitration do not match. Laws arbitration law and international arbitration in keeping with the trend of development, expand the scope of arbitration.Part four combing our legislation on the arbitrability of the development trend of the response, First of all, China's legislature adopted a positive and negative general cited a combination of, but involved in marriage, custody, support, inheritance disputes and handled in accordance with the law by the executive the dispute can not be referred to arbitration. For other special contentious issues is the issue of arbitration, "Arbitration Act" there is no specific requirement, and leave it to deal with relevant laws and regulations. In general, these provisions are not uniform and in principle, there are many problems. Laws arbitration law and international arbitration in keeping with the trend of development, expand the scope of arbitration. There is necessary to complete, amend, perfect the content of arbitration, under the international trend of expanding the arbitrability. |
