The Theory Of Construction Of The Subrogation-Arbitration Mechanism

China’s current law only allow creditors to exercise the right of subrogation by thelitigation way. At the beginning of the system building, it has really make some complexdebts solved, just like chain debts disputes and serial debts disputes. However, with theprogress of the society and the development of economy, it has appeared the phenomenonthat the creditor in a suit of subrogation has been prevented, that is, when at least onesection of the contract between the creditor and the debtor or the contract between thedebtor and the secondary debtor contains arbitration clause, the validity of the arbitrationclause exclusives jurisdiction, at this time,the conflict between arbitration and jurisdictionin the subrogation disputes is formed. Because our country is lack of legal regulationresponse to this problem, so each place has its own practice, the academics also talk aboutvarious. Therefore, can the creditor through the arbitration procedure to perform the rightof subrogation? What is the identity of them? How to exercise it? All these problemsabove needs to be further researched urgently.In this paper, firstly the form of the conflict between arbitration and jurisdiction in thesubrogation disputes will be clearly divided. On the basis of simple generalization onChina’s subrogation system and arbitration basic knowledge, in line with the theory withpractice research spirit, I will comprehensively expound the theoretical foundation of thesubrogation-arbitration mechanism, respectively from four perspectives including thesubrogation theory, the arbitration basic theory, the effectiveness of arbitration agreementexpansion theory and jurisprudence analysis. And through the induction and contrast ofdomestic and international relevant legislation, the arbitration rules and arbitration practice,we can also find for a strong practical support for the subrogation-arbitration mechanism.Therefore, I insist that the creditor can perform right of subrogation through the arbitrationprocedure and I will set some preliminary program. I argue that, on one hand, we shouldgive the creditor the right of subrogation arbitration claim, on the other hand, we shallestablish and perfect the third person of arbitration system, hoping that creditor can chooseto mention the subrogation arbitration application or apply for being involved in the arbitration procedure between the debtor and the secondary debtor which has alreadybegun, so as to realize his legitimate rights,when he faces the jurisdiction objection ofarbitration clause.