Study On The Judicial Supervision Over International Commercial Arbitration

Since its emergence,arbitration has always been favored by commercial parties and has become an important mechanism for dealing with international commercial disputes.The independence,effectiveness and privacy of international commercial arbitration in dealing with commercial disputes have eliminated the distrust of the court in the proceedings of a state.However,arbitration is not a completely fair mechanism,and it is necessary to supervise the arbitration process when the arbitration procedure is defective.The judicial supervision of arbitration is not only the foundation for the opening of the private sphere of personal autonomy,but also the guarantee of the good operation of the arbitration right.At the same time,judicial supervision can alleviate the conflict between the benefit value and the fair value of arbitration,promoting the realization of the autonomy of the litigants.The judicial supervision over arbitration has both the correcting side and the supporting side.Before the initiation of the arbitration proceedings,the court shall supervise the jurisdiction of the arbitration.The supervision standards and time for the effectiveness of the arbitration agreement vary from country to country,but the practice of international legislation shows the trend of encouraging the application of arbitration and reducing unnecessary intervention.The establishment of the jurisdiction of the arbitral tribunal gives the arbitral tribunal the power to determine the validity of the arbitration agreement,and the exercise of this power should be subject to the supervision of the court.In contrast,China’s judicial review of the arbitration agreement is strict,and the typical example is that it is difficult to carry out provisional arbitration.After the initiation of the arbitration proceedings,the court shall supervise the establishment of the arbitration tribunal and provide guarantees for the implementation of the interim measures.The court’s supervision over the objection of the arbitrator effectively guarantees the first link of arbitration justice.In China,the right to handle arbitrators’ dissent is in the hands of the arbitration commission.Although this guarantees the independence of the arbitration,it essentially deprives the parties of the right to seek redress from the court.After the arbitration,the court will focus on the supervision of the award.By supervising the erroneous arbitral award,the court salvaged the loss of litigants caused by the defects of the arbitration procedure.The court’s affirmation of the effective award guarantees the interest of the parties and the value of the arbitration.There are some differences between China and other countries in the supervision standard of international commercial arbitration award,which makes it more difficult to internationalize our arbitration.With the development of One Belt And One Road,commercial disputes along the route are more complicated and more frequent,which encourages us to improve the existing dispute resolution mechanism while innovating the dispute resolution mechanism.Under the new situation,the judicial supervision over international commercial arbitration should turn to the mode of narrow program supervision and only supervise the procedural matters affecting the impartiality of the arbitration right.At the same time,the establishment of the internal supervision mechanism of arbitration is the proper way for the healthy development of arbitration.On the issue of judicial supervision,China should also actively solve the problems such as the double standards of supervision,redundancy of transfer procedure of arbitration commission,defects of connection between legal provisions and international treaties.On the basis of absorbing the legislative experience of other countries,China should further improve the arbitration legislation by adopting necessary measures,such as gradually recognizing the provisional arbitration,unifying the review standards of arbitration both within and outside the jurisdiction and etc.