Legal Issues On The Place Of Online Arbitration

In recent years, the international commercial arbitration has become one of themain solutions to modern international trade disputes. Especially e-commercegenerated, as a representative of the alternative dispute resolution mechanism, thearbitration plays an important role in the dispute resolution process. Since the1990s,with the rapid development and the wide application of the network technology andthe communication technology, arbitration and network technology combined witheach other and produced a new type of dispute resolution--online arbitration. Thegeneration and development of online arbitration has initiated a new era of arbitration,and with its unique advantages, it will become the new direction of the developmentof traditional arbitration in the future. However, as a new thing, online arbitration alsosave a lot of legal issues, such as the determination of the place of arbitration, theform of the arbitration agreement, the identification of effectiveness of onlineevidence and the Recognition and Enforcement of arbitral awards and so on.Based on the analysis and research of the existing theoretical results, this paperdiscusses the specific issue that the determination of the place of online arbitration.The article focuses on a critical analysis of some points, which raised earlier intheoretical circles that both the theory of the arbitrator location, theory of the onlinearbitration place, theory of the computer server location, theory of the website owneror controlled location, theory of the arbitrator receiving e-mail location and the theoryof non-domestic arbitral that a new development in the theory. For these theories havesome insurmountable obstacles and defects that do not effectively solve the problemof the fail of the place of arbitration. Therefore, based on the reason of problem, thearticle presents a properly theory to resolve the problem, which is called the seat ofarbitration theory. In addition, as the theory of arbitration seat a guide, the articleattempts to discuss the determination of the place of online arbitration from the frameof domestic law and international, and gives some advices to resolve the problem ofthe fail of the place of arbitration.Besides the introduction and conclusion, the article is divided into four chapters: The first chapter expounds the basic theory of online arbitration and the place ofarbitration, including the role of the place of arbitration in traditional arbitration andthe determination of the arbitration, at the same time introduces the theme of thispaper which is the legal barriers of the determination of place of online arbitration,namely "the fail of the place of arbitration ".The second chapter discusses the theories about determination of the place ofonline which put forward in theoretical circles, not only contains the generaldefinition of theory of the determination of place of online arbitration, but also for thedevelopment of the new theories. This chapter is mainly to elaborate thedenationalised arbitration theory and the seat of arbitration theory.The third chapter is on the basis of contents of the previous two chapters, putsforward the basic ways and the relevant factors of the determination of place of onlinearbitration, and then gives some suggestions from two aspects of the framework ofdomestic law and international law framework respectively.The fourth and the last chapter discusses and reviews the regulation of Chinaabout the place of arbitration from the domestic arbitration legislation and thearbitration rules of the arbitration institution, and holds that the competentdepartments should adopt the theory of seat of arbitration, timely amend arbitrationlaw, at the same time should also perfect the rules of arbitration of the arbitrationinstitution.