The Application Of The Ad Hoc Arbitration System In China’s Free Trade Area

In our current Arbitration Law,the rules have excluded the ad hoc arbitration by requiring a chosen arbitration agency in a arbitration agreement.But this is inconsistent with the treaties we have established as well as the International practice in arbitration.The Opinions on providing judicial guarantee for the construction of the pilot free trade zone(law 2016 No.34)established by Supreme People’s Court starts to take ad hoc arbitration into action.But the practice of ad hoc arbitration still needs to solve many questions because of the rules are too general to use directly.Thus,the paper researches the application of ad hoc arbitration of the pilot free trade zone as a system.And,the paper is constructed by three parts:Firstly,the paper analysis the background of pilot ad hoc arbitration in the free trade zone of China.Compared to other dispute resolutions,arbitration is the best in commercial dispute resolution when it appears in free trade zone.The complicated commercial dispute related to free trade zone needs the arbitration to be more diversiform.Institutional arbitration has been helpless to the practice.It is consequent for us to find new forms in arbitration practice in free trade zone,especially in the background that only institutional arbitrations are legal in the Arbitration Law in China.In the mood of innovation,ad hoc arbitration could be a breakthrough because it is with much more flexibility and higher efficiency.What is more,the unique character and status of free trade zone make it possible to realize ad hoc arbitration by breaking through the current law conditions.Secondly,the paper expounds the reasons of application of ad hoc arbitration system in free zone in China.The seat of arbitration occupies an important position in the process.As the lex loci arbitri determines the application rule of procedural law in arbitration,the seats of ad hoc arbitration of pilot free trade zone should be limited in Chinese Mainland.Arbitration rules are crucial in the process because it is the internal disciplines of arbitration participants.The rules applied in pilot ad hoc arbitration in free trade zone can be settled by several ways.The rules can be determined by the participants,the permanent arbitration agency or other professional institutions.Party autonomy principle will determine the arbitration rule in case.In case of accommodating to the characters of ad hoc arbitration and expanding the range of arbitrators,the currently severe qualification requirements of arbitrators should be easing as well as the register of arbitrators should be open to public.Finally,the paper discusses several legal obstacles may appear in the ad hoc arbitration in pilot free trade zone.Some targeted legislation suggestions are put forward to overcome the obstacles.The practice of arbitration can be innovated and breakthrough the rule in reality,based on the character of free trade zone.Actually,this kind of innovation can not avoid meeting the obstacles in current legislation rules.In our current Arbitration law,Article 16,paragraph 2,the rule claims that a validatory arbitration agreement should contains the chosen arbitration commission.This denies the validity of ad hoc arbitration.The rule makes it work without legal foundation when testing the ad hoc arbitration in free trade zone.The situation takes kinds of problems in juridical supervision.Thus,to make the progress of pilot ad hoc arbitration in free trade zone successful,we need to adapt the attitude of Arbitration law to the ad hoc arbitration,means transfers it from excluding into admitting,and to modify the rules that may become the obstacles of ad hoc arbitration such as the rules relating to the validity of arbitration agreement,the qualification of arbitrators and the recognition &enforcement of arbitral awards.