On The Applicable Conditions Of China's Re-arbitration System

As a quick,final,voluntary,confidential and economic alternative dispute resolution(ADR),arbitration is widely favored by people.However,in order to promote the advantages and avoid the disadvantages,it needs great skills,so the re-arbitration system can be developed.It grew out of the hostile era of arbitration,and created in the era of rapid development of arbitration.The purpose of re-arbitration is to maintain the high efficiency of arbitration and reduce the possibility of cancellation of arbitration award.But the "remit" was more due to the British judicial attitude towards arbitration at that time.Our country has established a system of re-arbitration as a result of article 34 of the model law.In China,the re-arbitration system is stipulated in Article 61 of the Arbitration Law of the people's Republic of China(the "Arbitration Law"),which means that after the parties apply to the court for cancellation of the arbitration award,the people's court,after accepting the application and after examination,considers that the arbitration tribunal can conduct the re-arbitration,informs the arbitration tribunal to re-arbitrate,and at the same time suspends the cancellation procedure.However,if the arbitration tribunal refuses to resubmit the case,the cancellation procedure shall resume.This provision does not set the specific scope of application until Article 21 of the interpretation of the Supreme People's Court on Several Issues concerning the application of the Arbitration Law of the People's Republic of China(the interpretation of the Arbitration Law)specifies that,both conditions are related to evidence but the difference is that one is positive forgery and the other is negative concealment.Due to the existence of local provisions in addition to the above two,there is no unified opinion on the application of the system in judicial practice.Obviously,there is a lot of discussion space for the current provisions.There are disputes in the application of the re-arbitration system.First of all,the preconditions for re-arbitration are: according to the principle that the award will come into force once it is made,the original arbitration award has come into force.After re-arbitration,there will be two effective awards.Does it violate the above principles? How to solve this problem in theory and practice? In the judicial practice of our country,there are different views on it.Britain's views on the validity of re-arbitration of the original arbitral award are "invalidation","suspension of validity" and "validity is just not to be enforced".Combined with the current situation of our country,this paper holds that we should make clear the effect of the original arbitration award.After the re-arbitration,the original arbitration award is of undetermined effect and the scope of re-arbitration should be limited to the scope of court's notice.Secondly,in terms of the re-arbitration system stipulated in the Arbitration Law of our country,as for subjective conditions,the parties shall first apply to the court for cancellation of the arbitration award.After the court has examined the case,it is not necessary to obtain the consent of both parties to notify the arbitration tribunal for re-arbitration.In many countries,the initiation of the re-arbitration procedure is not decided by the court according to its authority,but based on the application of the parties.Party autonomy is the soul of arbitration.It is not proper for the people's court to decide whether to re-arbitrate or not.Autonomy of will in arbitration is not an absolute principle in today's society,but also limited by due process.At the same time,the principle of due process also provides certain guarantee for the autonomy of will among the parties.Finally,the objective conditions are the specific terms of re-arbitration.The Arbitration Law of our country does not clearly stipulate the relevant terms,but the judicial interpretation lists two substantive conditions of re-arbitration.The question is whether the cases enumerated in the judicial interpretation are exhaustive and reasonable.It is necessary to add procedural matters,but more importantly,we should be careful to use re-arbitration to prevent the abuse caused by vague conditions.The re-arbitration conditions of domestic and foreign arbitration awards are not uniform,so the application conditions of both need to be coordinated.Based on the domestic legislation and practice,combined with the relevant international experience,this paper will analyze and discuss the applicable conditions and the value of re-arbitration.