On The Abuse Of Procedural Rights And Its Regulations

In today's society,international commercial arbitration has surpassed litigation procedures as the paramount option for the commercial parties of all countries to resolve transnational disputes due to their advantages of efficiency,speed,simplicity,confidentiality and so forth.However,such a widely popular international commercial dispute settlement mechanism still inevitably suffers from the stigmatisation of various abuses of procedural rights.In order to explore the cure for this stubborn ailment,this article arrives at the following conclusions via legal logic analysis,case analysis,and set-theory graphical analysis:First and foremost,the concept of abuse of procedural rights in international commercial arbitration refers to the action of parties involved in international commercial arbitration where such acts,performed through the improper use of procedural rights,with ostensible “legitimacy”,actually harm the legitimate rights and interests of the others.The abuse of procedural rights in international commercial arbitration has three major behavioral patterns: first,the parties waive their rights and cause damage;second,the parties insufficiently exercise their rights and cause damage;third,the parties normally exercise their rights but still cause damage.The abuse of procedural rights in international commercial arbitration features three characteristics: firstly,as compared with domestic lawsuits and arbitral procedure,language barriers facilitate the abuse of procedural rights in international commercial arbitration;secondly,as compared with domestic lawsuits and arbitral procedure,geographical obstacles also increases the damage caused to the parties by the abuse of procedural rights in international commercial arbitration;lastly,the judicial immunity of sovereign states also imposes obstacles to regulating the abuse of procedural rights in international commercial arbitration.In addition,this paper also discovered the following rules: The concept of abuse of procedural rights in arbitration bears the maximum extension,to which malicious arbitration is second.False arbitration and arbitration fraud possess the same connotation and denotation,whose extension are both minimal.Furthermore,the phenomena of the abuse of procedural rights in international commercial arbitration,based on the characteristics of the damage caused by its harmful acts,can be generally classified into two major categories: the abuse of rightscausing procedural delay and the abuse of rights effecting procedural nuisance.The former accounts for the majority of the party's abuse of procedural rights in the foreign-related commercial arbitration,including all three types of behavioural patterns of the abuse of procedural rights in international commercial arbitration where the parties either waive their rights and cause damage;or insufficiently exercise their rights and cause damage;or normally exercise their rights but still cause damage.And these two major categories of the phenomenon of abuse of procedural rights are ubiquitous in all the three stages of the international commercial arbitral procedure,viz the stage before the trial,during the trial and after the trial.The phenomena of the abuse of procedural rights in international commercial arbitration before the trial mainly are: the abuse of objection to the jurisdiction of the arbitral court,the abuse of the composition of the arbitration tribunal and other personnel,and the abuse of application for the perpetuation of property/evidence to delay the arbitration;during the trial,the parties could use the evidence raids to delay,even reset the entire arbitral procedure;After the trial,the parties may delay the execution of the award by applying to the court of law for cancellation or denial of the recognition and enforcement of the foreign-related award.Therefore,the abuse of rights causing procedural delay is the hardest hit by the abuse of procedural rights of foreign commercial arbitration.The latter accounts for a relatively smaller proportion of the entirety of the phenomena of the abuse of procedural rights in international commercial arbitration,as compared with the abuse of rights causing procedural delay.It mainly encompasses the behavioural pattern where the parties normally exercise their rights but still cause damage,and chiefly involves only one type of cases: the parties' deliberately providing false contact information to the arbitral court.Nevertheless,it causes the greatest and most direct damage to the victims.Therefore,we should by no means ignore it.Moreover,in conformity with the severity of the damage caused by the abuse of procedural rights in international commercial arbitration,the action of the abuse of procedural rights in foreign-related commercial arbitration can be further divided into illegal acts and non-illegal acts of the abuse of procedural rights in international commercial arbitration.Given the necessity and feasibility of regulation,this article mainly proposes the corresponding regulatory strategy to the former.In order to more effectively check the abuse of procedural rights in international commercial arbitration,this paper borrows a more advanced system of two-tiered accountabilityelements derived from the latest theoretical findings of criminal law to identify the violations,and puts forward the corresponding strategies for regulating the illegal acts of abusing procedural rights in international commercial arbitration from either the perspective of substantive law or of the procedural law.In terms of substantive law,this paper trusts that it may mainly adopt the breach of contract damage liability based on the Arbitration Integrity Agreement and tort liability to effectively regulate the illegal acts of the abuse of rights causing procedural delay and the abuse of rights effecting procedural nuisance.In terms of procedural law,this article considers that it is possible to effectively regulate the illegal acts of the abuse of rights causing procedural delay and the abuse of rights effecting procedural nuisance by limiting the amount of times of exercising procedural rights,limiting the duration of the exercise of procedural rights,requiring the abuser to bear more arbitration fees,and petitioning for revoking or refusing to recognise and enforce foreign arbitration awards.Last but not least,in view of the current Chinese legislative vacancies and shortcomings,based on the above-mentioned regulatory methods,this article puts forward the following legislative proposals for regulating the illegal acts of the abuse of procedural rights in international commercial arbitration: the introduction of the Arbitration Integrity Agreement,the addition of clauses limiting the number of times of exercising procedural rights,the amelioration of the clauses limiting the duration of exercising procedural rights and the addition of clauses requiring the abuser to bear more arbitration costs.The loopholes in the legal system are unavoidable due to the inherent lag and stability of the legal norms,nor can the greed of human nature be reversed.Therefore,the abuse and regulation of rights is bound to be an eternal topic that constantly updates with the development of human legal systems.The regulation of the abuse of procedural rights in international commercial arbitration also calls for the continued attention and unremitting efforts of later researchers,legislators,and legal practitioners to truly play a long-term role.The value of fairness and efficiency of international commercial arbitral procedures will thus be maintained,achieving the goal of effectively solving conflicts and disputes on a global scale and promoting the sustained,stable and healthy development of global economic trade.