The Establishment Of Ad Hoc Arbitration System In China

Since the Fourth Plenary Session of the 18 th CPC Central Committee,China has begun to implement a diversified dispute resolution mechanism for all deployments and deepening reforms.As one of the three major dispute resolution methods,arbitration has developed rapidly in China,although it started later than mediation and litigation.Under the current situation,on the one hand,the pressure on the lawsuits of the courts has continuously increased.On the other hand,with the economic development and the increasing frequency of people's economic activities,arbitration has become more and more widely used.Under this background,perfecting our country's arbitration system is a matter of no delay.Arbitration is mainly divided into institutional arbitration and ad hoc arbitration.Institutional arbitration is derived from ad hoc arbitration.Both are indispensable forms of a perfect arbitration system.Both forms of arbitration are applied in most countries and regions simultaneously.However,China currently only recognizes the status of institutional arbitration in the law,and there is no clear provision for the ad hoc arbitration.It can be said that ad hoc arbitration is a “vacuum” state in China's legal provisions.According to the provisions of Articles 16 and 18 of China's current Arbitration Law,the effectiveness of ad hoc arbitration is not recognized in mainland China.At the same time,as a signatory to the United Nations New York Convention of 1958,our country is obliged to recognize and enforce ad hoc arbitration in otherStates parties to the Convention.In addition,according to relevant bilateral agreements and related agreements between mainland China and Hong Kong and Taiwan,the temporary arbitration of relevant countries,Hong Kong,and Taiwan can be recognized and implemented in China.Therefore,with regard to ad hoc arbitration,there are two kinds of unequal attitudes in the "domain" and "outside the domain." China,as a country with rapid economic development,has frequent foreign economic and trade exchanges.With the establishment of the Free Trade Zone and the "One Belt and One Road" strategy,China's foreign economic exchanges are increasing day by day.Temporary arbitration,as a form of arbitration in the world,accounts for a relatively large proportion.One is that there is an increasing demand for foreign exchanges in China,and even for domestic economic entities.Therefore,our country urgently needs the arbitration system at night to explore the introduction of the arbitration form of temporary arbitration.On January 9,2017,the Supreme People's Court promulgated the "Supreme People's Court's Opinions on Providing Judicial Safeguards for the Construction of Free Trade Pilot Zones"(hereinafter referred to as the "Supreme Court Judicial Protection Opinions"),which stipulates that it can be conducted under three specific conditions.China's free trade area began to implement a temporary arbitration system.This provides a new idea and direction for the ad hoc arbitration system to be launched and developed in China.It is the beginning of the development of China's ad hoc arbitration system and has epoch-making significance.The promulgation of the Supreme People's Court Judicial Protection Opinion has broken the "vacuum" status of China in the field of ad hoc arbitration.We should further study the connotation and extension of the "three specifics" in the Supreme People's Court's Judicial Safeguards Opinion and explore the establishment and development of ad hoc arbitration in China in the new situation so as to better serve the enterprises in the free trade zone and even the enterprises in the country.Foreign and domestic trade,at the same time,laid a good foundation for the construction of the “One Belt and One Road”.This article is divided into four parts.After analyzing the obstacles to thedevelopment of ad hoc arbitration in our country and the necessity of establishing it,we use the free trade area as a starting point to discuss the way in which the ad hoc arbitration system was set up in China and learn from the success of foreign countries.The temporary arbitration model,in conjunction with China's specific national conditions,put forward a concrete concept for establishing an ad hoc arbitration system in China.The first part of this article is about the obstacles to the development of the ad hoc arbitration system in China and the necessity for its establishment.First introduced the concept and characteristics of ad hoc arbitration,and then explained the vacancy status of ad hoc arbitration in our country's arbitration system,but at the same time,China has two different attitudes toward interim and extraterritorial adjudication.Then analyzes the reason why the temporary arbitration system is lacking in our country.Finally,it shows that it is necessary to establish an ad hoc arbitration system in our country.The second part of this article is the introduction of three specific analyses of the ad hoc arbitration in the free trade zone.First of all,it was introduced that the introduction of the "Supreme Law Judicial Protection Opinion" has created a new situation for China's arbitration system and provided a new path for the introduction of an ad hoc arbitration system.Then a specific analysis was made on the “three specifics” specified in the comments,which were divided into specific locations,specific rules,and specific individuals.From these three aspects,we explored the possible ways and the specific modes of operation for ad hoc arbitration.The third part of this paper draws lessons from the extraterritorial arbitration system.The author selected two representative extraterritorial arbitration systems,namely,the ad hoc arbitration system in Britain and the temporary arbitration system in Hong Kong,China.First of all,it analyzes the provisions of the arbitration law of the United Kingdom on ad hoc arbitration,and introduces the common designations of the ad hoc arbitration in the United Kingdom.It also discusses the setting of the administrative secretary of the English arbitration tribunal.Then he introduced HongKong's ad hoc arbitration system,analyzed the Hong Kong law's provisions on ad hoc arbitration,and introduced Hong Kong International Arbitration Center and its important role in ad hoc arbitration.The fourth part of this article is the concrete conception of the establishment of China's ad hoc arbitration system.On the basis of summarizing the first three parts,this part puts forward the concrete conception of the ad hoc arbitration system on the basis of combining the existing arbitration system in China and extraterritorial experience.It is mainly divided into two aspects.The first is the design exploration at the system level,which proposes the introduction of temporary arbitration,the establishment of an arbitration mechanism by an arbitration institution,and the introduction of an agency for temporary arbitration.Followed by the legal level,based on China's current laws,it puts forward suggestions for the perfection of laws for temporary arbitration.