Supervision And Assistance Of Litigation To Arbitration Proceedings

Litigation and arbitration are two methods of dispute resolution, both of which are of great importance and can made judgment or award for civil disputes with final and binding effects. However, one particular can only be resolved by either of the two methods, which means the parties can not choose both litigation and arbitration.An effective arbitration clause can preclude the jurisdiction of the Court exercised on behalf of the country, and arbitration proceedings shall be conducted, heard and determined by an independent arbitral tribunal in accordance with the agreement of the parties. The law confers upon the court the right to supervise arbitration proceedings by way of litigation, such right can be reflected in the determination of the effectiveness of arbitration agreement, point of law adopted by the award, procedural legality of arbitration, impartiality of arbitral tribunal and etc., and the determination of the effectiveness of arbitration agreement is most important. Litigation is to the conducted by the court as a state institution, which directly enforce the judgment and order made by their own, but arbitration is to be conducted by arbitration commission and tribunal respectively as legal person of institution and natural person, who can made a effective judgment but cannot enforce the same through their own power. In the circumstance, pursuant to the law, the court was conferred upon the right to assist arbitration by way of litigation, which was reflected in the constitution of arbitral tribunal and property and evidence preservation as well.The effectiveness of arbitration agreement is a pre-condition to the commencement of arbitration proceedings. Given that arbitration can preclude jurisdiction of court, it is necessary to have the litigation determine the effective of arbitration clause. In respect of the supervision to effectiveness of arbitration agreement by litigation, this can be done in superficiality or alternatively in substance. The court can adopt either of two ways on basis of a particular case, but the arbitration proceedings shall not be interfered with and the court shall not expend its jurisdiction in exercising its right.Some courts from other countries or regions are conferred with the right to appoint arbitration, however, pursuant to Arbitration Law of PRC there is no such right with the court. In conjunction with the institutional arbitration adopted by China, it is not necessary at present to take example from the laws of other countries unless ad hoc arbitration is allowed by the laws of PRC in the future. Assistance to arbitration by litigation with respect to property and evidence preservation is the most important content in the litigation’s assistance role and Chinese court should accept by way of application forwarded by arbitration commission in accordance with the current Arbitration Law of PRC. But in opposite, the some courts from other countries or regions can accept such application directly. In the essence, the current requirement of application forwarded by arbitration commission is lack of necessity, and therefore China shall consider taking example from other countries to have the court accept preservation application directly.