On The Legal Function Of Arbitration Institutions In International Commercial Arbitration

The legal functions of arbitration institutions in China's Arbitration Law are mainly stipulated in Articles 14 and 15 of the Arbitration Law,216 of the Civil Procedure Law and 10 of the Law on the Application of Law in Foreign-related Civil Relations.China's Civil Procedure Law has undergone several major amendments,but the relevant legal provisions on arbitration institutions have not been touched.However,this does not mean that there is no need to amend the legal positioning of arbitration institutions in China.On the contrary,there are two totally different trends in the relevant legal provisions of arbitration institutions and judicial practice.It can be seen in the following two aspects:(1)The legal function of arbitration institutions tends to be strengthened.For example,in the Civil Procedure Law,the nature of arbitration institutions can affect the nationality of arbitral awards,and the Arbitration Law also provides that arbitration institutions have the right to decide on arbitration procedures.Moreover,in the Law on the Application of Law on Civil Relations with Foreign Countries,arbitration institutions have the right to decide on arbitration procedures.The legal function of the arbitration institution has also been strengthened.It holds that the arbitration institution can identify foreign laws and take the seat of the arbitration institution as the criterion to judge the validity of the arbitration agreement;(2)In the development and practice of the arbitration system,the relevant provisions of the legislation have not been well implemented,and the relevant arbitration legal rules have not been applied,and the relevant legislation on the arbitration institution is increasingly fragmented.The trend of modernization.However,with the internationalization of arbitration theory and the contradiction between arbitration practice and arbitration practice,the question of the legal function of arbitration institutions has become prominent.Whether the function of arbitration institutions should be strengthened or weakened is the main problem to be solved at present.China's arbitration theorists have been discussing the revision of the Arbitration Law.Since the enactment of the Arbitration Law,some revisions have been made,but they have no substantial effect.The status of arbitration institutions is still vague.Therefore,there are many theoretical calls for the revision of the legal parts related to arbitration institutions.The current international prevailing temporary arbitration is to prevent arbitration by institutions from becoming the only one.Provisional arbitration meets the trend of internationalization of arbitration nowadays.China should also adopt provisional arbitration so as not to let institutional arbitration become a shackle.Arbitration by foreign arbitration institutions in Britain and France is a common practice in countries where the arbitration system has developed fairly well,which is conducive to market competition of arbitration institutions.China's current Civil Procedure Law and Arbitration Law do not give a clear definition to arbitration institutions,but directly uniformly stipulate them as "arbitration commissions".However,there are many problems in practice,such as unclear legal status,confusion of powers and responsibilities,and unclear functions of arbitration institutions.If the arbitration legislation pays attention to strengthening the legal function of the arbitration institution,people will lose confidence in the power of the arbitration tribunal,and the power of the arbitration institution is expanding day by day,which greatly reduces the prestige of the arbitration.Although the discussion on the legal status of arbitration institutions in China has been carried out in both theoretical and practical fields,the focus of attention is mostly on the two aspects of the civil reform of arbitration institutions and the transformation of arbitration institutions.There are fewer scholars who systematically pay attention to the legal functions of arbitration institutions in China's arbitration legislation,and fewer who write books for them.At present,the continuous expansion of the legal functions of arbitration institutions in China has become a hindrance to the development of arbitration system in China and the pace of internationalization.The strengthening of the legal functions of arbitration institutions can be seen in the following aspects:the nature of arbitration institutions determines the nationality of arbitration awards,arbitration institutions exceed the arbitration tribunal,and the law of the location of arbitration institutions decides the validity of arbitration agreements.In addition,the continuous development of arbitration system and the emergence of endless practice cases constantly contradict each other,making the norms of arbitration institutions fragmented.The arbitration system centered on arbitration institutions,comparing the power of arbitration institutions with that of courts,and disapproving of the particularity of international commercial arbitration,etc.,lead to the strengthening of the legal functions of arbitration institutions.It will cause many adverse consequences for the further development of arbitration in China:it will affect the exercise of arbitration rights,and it will not be conducive to the internationalization of arbitration in China.In addition,it will lead to the administration of arbitration.The key to amending arbitration legislation in China is to weaken the legal functions of arbitration institutions and strengthen the legal functions of "arbitration tribunal" and "arbitration place".Specific measures include the following aspects:reducing the difficulty of arbitration institutions entering the market,stimulating competition in the arbitration market,strengthening the power of arbitration tribunals,and reducing the influence of the law of the location of arbitration institutions in the application of law.