Study On The Principle Of Competence-Competence

Obtaining jurisdiction is the prerequisite of starting arbitration procedure. The establishment of the principle of competence-competence makes arbitration procedure promote rapidly to effectively maintain the high-efficiency and convenient core value of arbitration tribunal. The target of this principle is delaying the supervision of court on arbitration and arranging it to a reasonable moment to ensure the smooth implementation of arbitration procedure instead of excluding the judicial domination of the court or endowing arbitration tribunal the ultimate power to decide its jurisdiction. The establishment of this principle is the tremendous success of modern arbitration development, which breaks through the bound of traditional jurisdiction concept and is widely adopted by arbitration legislation and practice at home and abroad. Therefore, it is of great importance for the reality to conduct research on this.The first chapter is the introduction of the principle of competence-competence. The overseas principle of competence-competence originated from 1950 s. Allowing the court to decide the exception of the principle of competence-competence under traditional concept makes the arbitration procedure sluggish, and waste the time and money of the interested parties. That German Supreme Court admits that arbitration has the right to decide its jurisdiction arouses disputes, which promotes the new deed of breaking through the traditional concept of arbitration jurisdiction exception. Since it can delay early judicial intervention, promoting arbitration procedure effectively operate at top speed meets the concept of effective arbitration, which makes this mode rapidly be studied by many international arbitration institution, adopted by the domestic legislation and absorbed by the arbitration tribunal of famous permanent arbitration institution, and finally form the basic principle admitted by international arbitration practice.The second chapter is about the international legislation and practice of the principle of competence-competence. For the various arbitration development processes, legal traditional cultures and value measurement focuses, the legislations and practices of the principle of competence-competence in the whole world are different as well, which possess the operation mode that has differences among details. Model law on international commercial arbitration presents the eclectic legislation characteristics, which is the most suitable mode for our reference. International commercial arbitration rule adopts gate-keeping preliminary examination model of arbitration institutions, the negative influence that unable to timely consist arbitration tribunal is the area that needs precaution for Chinese future legislation. The tightness of arbitration legislation in United Kingdom, the radicalness of arbitration legislation in France and the innovation of arbitration legislation in Holland present the distinctive developments of the principle of competence-competence in difference countries. China should take god advantage of the late development advantage, and absorb and integrate the arbitration practice experience of those countries and their advanced legislative system.The third chapter is the dilemma of the principle of competence-competence in China. With the influences of many factors, such as Chinese arbitration development history, legal tradition, cultural background and the value choice of lawmaker, the processing method of arbitration jurisdiction exception with Chinese characteristics is under dispute. The existing problem is that the time choice of court intervening in arbitration jurisdiction exception dispute is prone to be abused by the interested parties, which delays the arbitration procedure, and the arbitration institution has the right to sensor arbitration jurisdiction exception issue, which makes the power of arbitration tribunal unfeasible. That the unreasonable arbitration jurisdiction system design makes the willingness of the interested parties not be respected, the low arbitration efficiency and reduced arbitration tribunal independence attribute to that domestic arbitration industry is hard to be in line with international convention.The fourth chapter is about the suggestion of improving Chinese principle of competence-competence, which includes referring to the legislative experience of advanced international system, and trying to propose the suggestive advice on the power distribution among arbitration tribunal, arbitration institution and court. The effective method is modifying Arbitration Act of 1995 that cannot suit for the current arbitration development and comprehensively constructing the principle of competence-competence from the legislative perspective. Clearing the functional distribution of labor between court and arbitration institution to prevent the interested parties from intentionally delaying arbitration procedure and ensure the independence and effective function of arbitration from injure.