On The Truncated Arbitration Issues

In commercial arbitration,the form of the arbitration tribunal was divided into the sole arbitral tribunal and the collegial arbitration tribunal.The arbitral tribunal composed of three arbitrators is more common.In the process of arbitration,if one of the arbitrators in the arbitration tribunal has not participated in the remaining arbitration proceedings for some reason,and the remaining two arbitrators continued to arbitrate,then there was truncated arbitration.Some arbitration rules involved the provision of an arbitration clause.In the practice of arbitration,there were also problems with the absence of arbitration.However,in the arbitration law,there were few provisions for truncated arbitration.The gap in legislation led to the lack of the support of the corresponding legal norms for the vacant arbitrator.Even if truncated arbitration was based on arbitration rules,the arbitration award is also easy to be denied and implemented,or even revoked.For this reason,the academic community was controversial on some issues,such as whether the arbitral tribunal can be arbitrated,the applicable conditions of truncated arbitration and the validity of the ruling.Based on the basic theory of the absence of arbitration,such as the legality of the system and the effectiveness of the ruling etc.,this paper discussed the applicable conditions of truncated arbitration,questions about whether to admit and how to execute the arbitral award.The article hold that clear legislation is the fundamental method to solve the defects of truncated arbitration system.Moreover,it put forward the idea of constructing truncated arbitration system in the arbitration law of China.The text of this article included four parts:Part one mainly introduced the summary of truncated arbitration system.The article defined the absence of arbitration from three aspects,including the absence of the arbitrator,the applicable conditions of the absence of arbitration and the arbitral award,which was different from the majority opinion.It was believed that the absence of truncated arbitration was a state of fact that continues until the end of arbitration.The article suggested that the absence of arbitration should be distinguished from the arbitration of one situation,in which the arbitrator participates in the arbitral award after the trial was absent on the way to the case.From three perspectives,namely the fairness and efficiency of arbitration,the autonomy principleand the independent impartiality of the arbitrator,the article believes that the legitimacy of truncated arbitration should be affirmed.The second part compared the rules of arbitration to truncated arbitration.By combing the rules of arbitral arbitration,it found that the rules of arbitration vary in the extent to the degree of severity defined by the applicable conditions from truncated arbitration.The biggest difference was mainly in three aspects,namely,the decision subject,the arbitration stage and the reasons for the absence of arbitrators.At the same time,this paper made a brief comment on the subject of decision and the application of the arbitration rules in truncated arbitration.The third part introduces the practice investigation of the arbitration system.It analyzed the judicial review of truncated arbitration by the foreign courts.It also investigated the practice of Chinese courts not recognizing and executing foreign truncated arbitration.The article found that it was difficult to recognize and enforce the arbitral award,and this was because the composition of the arbitral tribunal or the arbitration procedure violates the arbitration agreement,violates the law of the place of arbitration,and violates due process.The fourth part put forward the suggestion of constructing the arbitration system.It analyzed the advantages of the arbitration system in China,such as the premise of arbitration rules and the basis of arbitration practice.However,it also pointed out that there are also many obstacles in our country's truncated arbitration,due to the deviation and delay of the arbitration concept and the defects of the arbitrator system.Moreover,it put forward the idea of constructing truncated arbitration system in the arbitration law of China,from three aspects: the scope of application,the stage of arbitration and the main body of the decision.Furthermore,it also put forward some Suggestions to the court in the recognition and enforcement of the review standards.