Research On Shareholder Derivative Arbitration

Originating from United States,shareholders derivative arbitration is able to curb strike suits.Arbitration does well in resolve derivative disputes with the help of its unique advantages in system.There is no definite legislation about the shareholder derivative arbitration,however,both people's courts and arbitral organizations attempt to use the theory of the shareholder derivative arbitration to try cases in current judicial practice.The article analysis and borrow some experience from precedents and theory of the shareholder derivative arbitration in United States,begin with the essence of derivative disputes,to explore the feasibility of the shareholder derivative arbitration in China.And basing on the predicament of the shareholder derivative arbitration,giving some advices about how to build the system of it from four aspects: the content of arbitral matter,the theory of expansion of arbitration agreement,the scope of respondent,and the status of company and other proper shareholders.There are five parts in the article:Part ? introduces the origin and the development of the shareholder derivative arbitration.The insufficient of the shareholder derivative arbitration make some greedy lawyers file strike suits to hurt the rights and interests of corporations.As an alternative dispute resolution,shareholder derivative arbitration curbs strike suits well.The development of its applying area experiences a process from close corporation-only to covering public corporation.Part ? shows the necessity of the construction of the shareholder derivative arbitration in China.With the systematic advantages of rapidness,professionalism,easy enforcement of awards overseas,voluntary,privacy and independence,arbitration is better than litigation to some degree.There is necessity for legislation to guide the cognition about the theory of the shareholder derivative arbitration of people's courts or arbitral organizations uniformly.Part ? talks about the feasibility of arbitrating derivative disputes in China.To begin with,this part explores that the essence of derivative disputes,and finds it is tort disputes caused by violation of fiduciary duties mainly.Second this part show the arbitrability of derivative disputes according to China Arbitration Law.Third this part demonstrates arbitration is able to provide sufficient relief for derivative disputes.Part ? focuses on predicament of the shareholder derivative arbitration in China.Some cases should not arbitrate for the inconformity of arbitral matter between submitted one and agreed one.There is also necessity to clear how no-signature shareholder to join in arbitration procedure,the scope of respondent and the position of corporation or other proper shareholders.Part ? makes some suggestion about constructing the shareholder derivative arbitration in China.First,arbitral matter should be tort disputes but not disputes of breaching the contact,or there is no way to arbitration.Second,theory of undertaking the entitative right and obligation can show how no-signature shareholder to join in arbitration procedure well.Third,position of corporation should take the narrow sense,include someone the corporation is reluctant or fails to claim rights after coming to harm.Forth,according to characteristic of the shareholder derivative arbitration,the corporation should be the respondent and the other proper shareholder should be co-applicant after his application.At last,the use of theory of piercing the corporate veil,both in substantial and procedure law,provides the theory basis of how to make related person accountable in arbitration procedure facing the affiliated transactions.