Thinking About Our Arbitration Jurisprudence Tends To Litigation Mode

In recent years, with the "litigation explosion" occurred, Courts are tired of dealing with so many cases, so foreign countries started to develop alternative dispute resolution. China also started to pay attention to the construction of multiple dispute settlement mechanism, and arbitration is getting more and more attention. As an important alternative dispute resolution, arbitration is favored because of its flexibility, efficiency and other characteristics. But there is an inappropriate trend, that arbitration tends to litigation mode, in the development of China's arbitration. The soft feature of arbitration is gradually replaced by the rigid feature of litigation, and the shadow of litigation appears everywhere in arbitration. The persistence of this phenomenon will affect the healthy development of arbitration, eventually leading to the demise of the arbitration. Therefore, to study this phenomenon, clarify their interests, provide theoretical support to opposing to arbitration tends to litigation model, and propose countermeasures is particularly important. This is precisely the purpose of this article.This article is divided into four parts, and historical analysis and empirical analysis are used as studying methods. First, the article introduces the origin of arbitration, analyses why arbitration appears when litigation exists,Clear the value of arbitration's independent existence as a dispute settlement, rather than a tributary of litigation. Then, the article describes the history of development of Chinese arbitration, pave the way for putting forward the question that arbitration tends to litigation mode. PartⅡdescribes in detail the performance of arbitration tends to litigation mode and analyses the reason this phenomenon appears through examining history, social environment, ideas and other aspects. At the same time, this part also studies defects of arbitration tends to litigation model, and proposes preventing arbitration tending to litigation mode on this basis. PartⅢdiscusses several Jurisprudence issues may be exist in the argument about arbitration tending to litigation mode, that value targets of arbitration, whether arbitration is contrary to the principle of justice as the final settlement, whether litigation can make the best judge and whether it breaches the idea of rule of law to establish multiple dispute resolution mechanism including arbitration, to clear away the theoretical obstacles of opposing to arbitration tending to litigation mode, preventing these problems as excuses to push arbitration to litigation mode, which is the focus of the article. Finally, the article studies how to prevent arbitration tending to litigation mode,and puts forward some practical suggestions according to the status of arbitration in China.