The Recognition Of Ad Hoc Arbitration And Its Legal Issues In China

The issue of the construction of ad hoc arbitration in China has been discussed for a long time in the arbitration field.As one of common dispute resolution mechanism in the world,ad hoc arbitration is widely used in international commercial affairs,especially in maritime business,and has been acknowledged by many counties.In the Hong Kong,China,for example,its arbitration legal system recognizes both the institutional arbitration and the ad hoc arbitration.Taking the HKIAC as example,as one of arbitral institution,it also provides administrative services for ad hoc arbitration.In the United Kingdom,ad hoc arbitration has been widely used in the field of maritime affairs.The LMAA participated in the ad hoc arbitral proceedings as an auxiliary arbitration institution and promulgated a new arbitration rule in 2017.In Germany,as a civil law country,it also recognizes ad hoc arbitration.This kind of dispute resolution plays an active role in the energy fields.The construction of our country's arbitration system was relatively late.The establishment of the entire arbitration system was rooted in the practices of the former Soviet Union and Eastern European countries.Prior to the implementation of the“Arbitration Law” in 1995,the denial of ad hoc arbitration was scattered in various early-stage legislation on economic contract disputes in China.However,in practice,many disputes still exist in “private” resolution through ad hoc arbitration.From the implementation of the “Arbitration Law” in 1995 to this stage in 2005,our attitude toward ad hoc arbitration has gradually changed.Although we still do not recognize the domestic ad hoc arbitration system,our country has allowed the parties to a caseinvolving foreign interests to proceed ad hoc arbitration outside the country and acknowledges its arbitral awards.At the stage from 2006 to 2015,with the promulgation of the judicial interpretation of the “Arbitration Law”,China further emphasized the autonomy of the parties to the arbitration and gradually broaden the recognition of the foreign-related factors of foreign arbitration.The Supreme People's Court also issued several regulations approving and implementing the ad hoc arbitral awards made in Hong Kong,Macao,and Taiwan.And by 2016,with the promulgation of “the Opinion”,ad hoc arbitration finally gained its legal status in limited scope,bringing China to a new era in the implementation of ad hoc arbitration.After “the Opinion” is released,Zhuhai Arbitration Commission has issued the“Ad Hoc Arbitration Rules for Hengqin Free Trade Zone” according to the requirements of the four restrictions.The China Internet Arbitration Coalition also promulgated the “Docking Rules for Ad hoc Arbitration and Institutional Arbitration”(hereinafter as the “Docking rules”).The “Docking rules” has also been recognized by the Guangzhou Arbitration Commission,it has revised its arbitration rules and thus officially recognized the “Docking rules” as ad hoc arbitration rules.With the successive issuance of ad hoc arbitration rules in our country,it gradually makes up the vacancy of ad hoc arbitration rules in our country,making the ad hoc arbitration in our country a certain degree of practical operability.And in November 2017,the advent of “the first Chinese ad hoc arbitration case” formally started the practice of ad hoc arbitration in China.In respect of judicial protection related to ad hoc arbitration,the Shanghai First Intermediate People's Court has also issued the “Implementation Rules for the Commercial Diversification Dispute Resolution Mechanism” to tie in with the judicial review of ad hoc arbitration.And at the same time,From the end of 2017 to the beginning of 2018,the Supreme People's Court has also issued three judicial interpretations concerning arbitration.From the determination of the effectiveness of arbitration to the execution of arbitral awards,further explicit provisions have been made.Those have played a certain role in the court's judicial review of ad hoc arbitration.But these judicial interpretations still have some conflicts and inconsistencies in the specific application of ad hoc arbitration.In this paper,the author will review the legal system concerning ad hoc arbitration in China,Combining the practice of ad hoc arbitration inside and outside of our country and the non-institutional arbitration services provided by internationalarbitration institutions.In the meanwhile,the author will further analyze the “Three Specifics” from the perspective of the understanding and application of Paragraph 3of Article 9 of “the Opinion”.And also,the author will discuss the ad hoc arbitration in Free Trade Zone by respectively analyzing the trial level of supervision procedure,interim measures,and the adequacy of the involvement of arbitration institutions.At the same time,the author will analyze the “the first Chinese ad hoc arbitration case”in two ways: the combination of ad hoc arbitration and internet arbitration,and the joint of ad hoc arbitration and arbitral institution.In this way,the author will further discuss the post development of limited recognition of ad hoc arbitration in Free Trade Zone and the role of arbitral institution therein.Starting from the combination mode of ad hoc arbitration-arbitral institution-internet arbitration,the author will further discuss the perfection of our country's arbitration legal system,in order to serve the development of China's ad hoc arbitration system in the future.