Empirical Study On The Adjudicating Jurisdiction

Accompany with our country market economy increasingly open and the internationalbusiness activities becoming increasingly frequent, arbitration, which plays important role indispute resolution, has exposed many problems to be solved urgently in practice. Amongthose, the decision system of the jurisdiction of arbitration is crucial for whether an arbitrationprocess can start normally and eventually decide if the final effect of disputes can be fair,equitable solution.However,the decision system of the jurisdiction of arbitration in our country has plentydefects both in legislation and in practice. Although our legislation has admitted theindependence theory of the arbitration clause, there still exist many insufficient aspectcomparing to the advanced legislation in other countries. These insufficiency will inevitablylead to the actual problems in the processing of the case, both substantive and procedural. Ourlegislation has not admit the jurisdiction concerning the jurisdiction theory, instead, it grantsthe authorization of deciding arbitration jurisdiction to the arbitration institutions. In dailypractice, the reviewing of jurisdiction often inevitably involves the identification ofsubstantive questions, including identifying of the agency by estoppel in identifying thequalification of parties, identifying the state of the ultimate user and manufacturer in theforeign trade contract, identifying the state of the legal branch and subsidiary and alsoidentifying the effects of the arbitration agreement which has been probably transferred,inherited, supplemented thereafter, or invoked in an other contract etc.. In those situations, notonly the independence and justice will be damaged, what is more serious is that the finalaward from the arbitration tribunal could be influenced by those identifications abovementioned. Besides, in the proceeding of the arbitration procedural, if one party raises anobjection to the jurisdiction, the hearing of the case must be suspended, until there is andecision issued from the arbitration institution. This regulation could lower the efficiency ofthe arbitration proceeding, meanwhile the parties would possibly using that to malicious delaythe procedure. The writer follows the whole train of thought from the current legislation situation to theproblems it causes, then regression to the legislative level seeking effective solutions,thereupon comes to the conclusion that establishing adjudicating jurisdiction system in Chinais the inevitable trend of the future development of China’s arbitration system.This paper mainly consist of three parts. The first part is the overview of the currentsituation of the deciding system of the jurisdiction of arbitration, explore the gap between thechina’s legislation and advanced legislation in the world through the analysis of the legislationsituation, and derivate the problems in arbitration practice. The second part mainly focus onthe real difficulties both substantive and procedural that CIETAC (CHINAINTERNATIONAL ECONOMIC AND TRADE ARBITRATION COMMISION), as an mainarbitration institution in China, encounters in case management deriving from the practicalsituation in China, classifying those problems, discussing with the specific case, and then sumup its exposure to the abuse of the system. The third part puts forward the suggestions on thecomprehensive establishment of the adjudicating jurisdiction system and prospects itsimportant practical significance.The adjudicating jurisdiction this paper talks about is refers to the deciding right in theperiod that from the commence of the arbitration procedure to the final arbitration awardissued, in the other words, is the right during the arbitration procedure. The background of thediscussion is the "institution-court concurrent control" arbitration jurisdiction deciding systemwhich has strong Chinese characteristic, and under which the arbitration institution playscrucial roles. The ultimate goal is through classifying of the CIETAC arbitration jurisdictionissues encountered in the practice, combining real typical cases, focusing on thefunction-distribution between arbitration tribunal and institution in the background of thecurrent "institution-court concurrent control" arbitration jurisdiction deciding system, pointingout the necessity of the establishment of the adjudicating jurisdiction system, and then, tryingto put forward some legislative suggestion with a definite object in view, meanwhile giving an profound outlook about how the establishment would influence of Chinese arbitrationdevelopment.