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Research On The Protection Of The Third Party’s Rights In The Arbitration In Our Country

Posted on:2016-09-18Degree:MasterType:Thesis
Country:ChinaCandidate:P N WangFull Text:PDF
GTID:2296330461962354Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Arbitration as a kind of modern dispute resolution mechanisms, with its autonomy, flexibility, professionalism,efficiency and other advantages, is increasingly becoming important to resolve civil and commercial disputes. But due to the implication among social entity relationships, the arbitration inevitably involves the interests of the third party, especially under the circumstance of the parties viciously dispose the interests of outsiders by the arbitration proceedings, the interests of the third party will be adversely affected by the arbitral awards. There are many arbitral awards violating the third party’s interests in judicial practices. At this point, how to make the third party’s interests safe becomes a legal problem to be solved. This paper firstly analyses the protection of the third party according to the factual basis and theoretical basis, indicating the necessity for protection of arbitrational outsiders; secondly, throughout our current legislation, whether in the civil litigation system or in the arbitration system, neither are designed to protect the interests of the third party in arbitration, resulting in the rights and interests of the third party faces many obstacles in legal protections; thirdly it compares all kinds of possible ways, theoretically analyzing the feasibility of these ways; Finally, it proposes the concrete constructions of the protection of the interests of the third party.This paper is divided into four parts as follows.The first part introduces the basis of the protection of the third party, indicating the necessity for protection of arbitrational outsiders. Firstly, through the cases in the judicial practice, it illustrates some arbitral awards infringe the interests of the third party and he has no way to remedy the interests; secondly,with the validity of arbitral awards expand to a third party, the requirements of due process, make up for the defect of the parties’ autonomy neglecting the outsider’s interests and alleviate the objective limitations of arbitration system, these three aspects elaborate the theoretical basis of protection of the third party in the arbitration.The second part focuses on the legal dilemma faced by the third party in the arbitration in our country. Firstly, there is no system of the third person in arbitrational proceedings, the arbitral authority has no right to correct its error,so it lacks legal basis to protect the rights of outsiders through the arbitration procedure; secondly, the subjects of revocation and non-enforcement of arbitral awards are limited to the parties in the case, and the court revoke or refuse to enforce an arbitral award according to "public interest" is full of uncertainty, making the monitor of the court of arbitration procedure is also difficult to remedy their interests; thirdly, pre-procedure of an outsider objects to the objectives of the execution is not reasonable, the trial supervision procedure is close to the people who is out in the arbitration, is limited to the application of enforcement action, which indicates that the third party judgement in the execution is not used; finally, a separate lawsuit increases the burden to prove of the third party, and may face problems of conflicts among effective legal documents, the suit of the third party discharging the judgment does not apply to the third party in the arbitration, explaining difficulties to protect the interests of the third party in the arbitration through litigation.The third part compares all kinds of possible remedy ways, theoretically analyzing the feasibility of these ways. First of all, the third party is different from the third person in arbitration, they have intersectional relations,but the system of third person in arbitration is not feasible in legal principle because of not complying with arbitration contractual characteristics. So some third parties can’t take part in the arbitration proceedings as a third person; then from the point of procedural safeguards and the substantive issues of the court review, the third party discharge the arbitral award is not feasible; and the third party withdraw the arbitration award show that protection of the rights of an outsider in terms of litigation has legitimacy.The fourth section presents the concrete constructions of the protection of the third party. The suit of the third party withdrawing the arbitral award and perfection of the lawsuit against the execution can provide comprehensive protection for the third party in arbitration in our country. This part discusses the details of these two ways,such as the applicable scope, mention conditions, jurisdiction and the trial, the legal effects and so on.
Keywords/Search Tags:The third party in the arbitration, The third person in the arbitration, The suit of the third party withdrawing the arbitral award, The suit of the third party against the execution
PDF Full Text Request
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