Research On The Principle Of Competence-Competence In International Commercial Arbitration In The Context Of The Belt And Road

In thirteenth Century,traders began to apply arbitration to solve commercial disputes.However,the introduction of arbitration in China was relatively late,and it was only more than 20 years since the arbitration law was promulgated in1994.However,we can learn from,absorb and absorb advanced management experience and rules,and make full use of the “national policy environment”and“backwardness” advocated by the “one belt and one road” policy to realize the rapid development of international commercial arbitration.This paper discusses the international status and development trend of the principle of self-determination in the latest World Investment and trade situation,then compares the legislative status of the principle of self-determination in our country with that of other countries,and puts forward some legislative suggestions to improve the principle of self-determination in our country.The full text is divided into four chapters in structure.First,it introduces the basic connotation and value orientation of the principle of self disciplinary jurisdiction.At the same time,combining the opportunities and challenges of the development of the principle of autonomy under the “one belt and one road”initiative,it analyzes the gap between the principle of discretional jurisdiction and the international practice.Secondly,by comparing and discussing the legislative norms andpractices of self-determination jurisdiction system in other countries,such as Switzerland,Singapore,Hong Kong and so on,this paper finally puts forward some legislative suggestions on the existent problems of self-determination jurisdiction system in China.Chapter one discusses some basic issues of the principle of self-adjudication jurisdiction in international commercial arbitration.The first aspect is the basic connotation of self-adjudication jurisdiction system,including the basic definition of the concept of self-adjudication jurisdiction principle,the dual effect of self-adjudication jurisdiction principle and the significance of establishing self-adjudication jurisdiction principle to arbitration jurisdiction system.The second aspect is to analyze the value orientation of international commercial arbitration in order to better understand the original intention of establishing the principle of Competence-Competence.The focus of this chapter is to clarify the negative effect of the principle of Competence-Competence,which is the focus of the debate on this principle in recent years.At the level of international commercial arbitration,more and more countries recognize the negative effect in their legislation,such as Switzerland and Singapore.Although some arbitration institutions have contributed to the development of the principle,the theoretical basis of the negative effect of the principle of Competence-Competence is still very weak in China.Whether in arbitration or litigation,the fairness of results and procedures is always at the top of value pursuit,while the status of efficiency value has been improving under the tide of economic globalization.Scholars have been spared no effort to promote the construction of an arbitration system that takes both fairness and efficiency into account.Moreover,the principle of Party autonomy,the principle of arbitration independence and the principle of supporting arbitration have laid a solid theoretical foundation for weakening judicial supervision and promoting efficient arbitration.The second chapter mainly analyzes the opportunities and challenges of the development of the rule of self rule under the background of “one belt and one road”.The initiative has received extensive support from relevant countries since it was put forward,and has achieved remarkable results in promoting the negativeeffects of international economic and trade.In 2018,in order to better serve the“one belt and one road”,China issued a guidance on the establishment of a dispute settlement mechanism,which provided a development opportunity for building a highly sophisticated dispute settlement system with arbitration as the center,mediation as the priority and justice as the guarantee.The tide of economic globalization and the construction of the community of human destiny have contributed to the rapid development of international trade and great demand for arbitration.Compared with litigation,arbitration undoubtedly has irreplaceable advantages in fully reflecting private autonomy.International commercial arbitration has been attached great importance,and its advantages of high efficiency and resource saving have become increasingly prominent,and it has become the first choice to solve international commercial disputes.At the same time,the principle of self-adjudication jurisdiction has been widely used worldwide.The jurisdictional disputes between courts and arbitral tribunals have become inevitable and must be clarified when conducting international commercial arbitration.However,the development of the principle of Competence-Competence is also facing tremendous challenges.Nowadays,the status of the principle of arbitration is constantly upgraded.On the one hand,self-adjudication jurisdiction and judicial supervision developed on the basis of autonomy of will restrict each other.The principle of self-adjudication jurisdiction of arbitral tribunals and judicial review of courts are necessary.On the other hand,the judicial intervention of courts in arbitral tribunals or arbitral institutions should be reduced out of respect for the contractual freedom of parties.However,China's domestic law does not specify the principle of Competence-Competence,only stipulates strict judicial supervision,and judicial supervision intervenes too early and too wide.This obviously lags far behind the international practice,does not conform to the international development trend,and is not conducive to building our country into a highly open and legalized international commercial arbitration center.The third chapter mainly tries to introduce advanced international system norms for our country by analyzing the legal systems of Switzerland,Singapore and Hong Kong and interpreting the legislative norms and practices of the self-adjudicationjurisdiction system of commercial arbitration in these three representative countries and regions.With the deepening of economic and trade activities along the Silk Road in an all-round way,Chinese enterprises,investors and countries and regions along the Silk Road are conducting closer and more active investment and trade activities,and cross-border commercial disputes such as international trade,investment and construction projects are increasing.Therefore,countries along the Silk Road need to understand each other's legal environment more.China urgently needs to build an arbitration normative system of equality,justice,mutual assistance and mutual trust.In the field of international commercial arbitration,Switzerland,Singapore and Hong Kong have always been the regions with a relatively early start and rapid development.In particular,the self-determination jurisdiction system of Singapore and Hong Kong has a great reference for the study of the principle of Competence-Competence in China.Switzerland adopts the principle of Competence-Competence,affirms the negative effect of self-determination jurisdiction,and limits the judicial supervision of arbitration to the supervision of procedure.In 2015,Singapore carried out a reform to meet the needs of reality and established its own International Commercial Court,which also adopted the principle of Competence-Competence.The Arbitration Rules of the Singapore International Arbitration Centre stipulate that before the formation of the arbitral tribunal,the arbitral tribunal decides whether to continue the arbitration on the basis of prima facie evidence;after the formation of the arbitral tribunal,the arbitral tribunal decides its jurisdiction;if the parties bring a lawsuit to the court,the court will prima facie examine whether the arbitration agreement is valid,and if it is valid,In Hong Kong follows the norms of the Model Law,clearly stipulating the principle of Competence-Competence and adopting the “coexistence control”system.Through the comparative analysis of the legislative norms and practices of the three other countries and regions' the principle of Competence-Competence,this paper understands the trend of international legislation and finds out the shortcomings of the relevant arbitration jurisdiction system in China.For our country,accelerating the reform process of international commercial arbitration and perfecting the normative systemof arbitration law is the proper meaning to realize the systematization and internationalization of arbitration rules.Chapter IV combs the latest development trend of the principle of Competence-Competence,summarizes the shortcomings of the principle of Competence-Competence in China,and puts forward legal suggestions to improve the principle of Competence-Competence in China.In order to make China's modern arbitration legislation more effective and minimize the gap with the prevailing practice of international commercial arbitration,and to encourage commercial disputes to be settled by arbitration methods,this paper puts forward some suggestions to improve the independence of China's arbitration system while keeping in line with international standards.The first step is also an extremely important step.To establish a real,fair and efficient self-adjudication jurisdiction system,it is necessary to define the subject of the exercise of arbitration jurisdiction as the arbitral tribunal,not the arbitration commission.The international community has generally reached a consensus on the jurisdiction of the arbitral tribunal,which should have jurisdictional power and have the power to decide whether it has jurisdiction or not.At present,the legislation stipulating the jurisdiction of the Arbitration Commission is extremely rare.The core purpose of arbitration was to ensure that the arbitration tribunal did not rely on the arbitration organs and courts to exercise its functions and powers.Once the situation that the arbitration tribunal could not decide independently,the result of arbitration would be challenged,thus violating the original intention of fairness and efficiency of arbitration.At present,China's arbitration practice has shown a trend of bringing the arbitral tribunal into the main body of jurisdiction exercise,and ultimately the complete jurisdiction of the arbitral tribunal is the inevitable result.In addition,it is suggested that judicial review should adopt “coexistence control” and that the arbitral tribunal should be recognized as the first adjudicator of jurisdiction.Of course,in this process,we must do a good job of localization in the two parts of the authorization of the arbitral tribunal and the limitation of the power of the court,which can be differentiated according to the different stages of arbitration.Arbitration is a quasi-judicial method.It is based on the agreement between the parties to arbitrate.All the power of the arbitral tribunal comes from the grant of private rights.The universal acceptance of the principle of self-adjudication jurisdiction in the world makes the rule that arbitral tribunals have their own jurisdiction become one of the arbitration rules of the major arbitration institutions.At the same time,with the rise of the principle of supporting arbitration,the national law attaches great importance to and protects party autonomy to an unprecedented extent.Now the Supreme Court has clearly set up the International Commercial Court,which reflects our support for the healthy development of arbitration,vigorously building a diversified,professional,internationalized,neutral commercial dispute resolution mechanism.While conforming to the trend of international legislative norms and keeping in line with international standards,we should also maintain the independence of our arbitration system,and step by step,steadily and steadily promote the coordination and integration of the international arbitration system so as to standardize and systematize it.