The Impact Of The Fact-Finding In Arbitration On The Latter Litigation

As to the impact of fact-finding in the previous arbitration on the latter litigation,the 10~thh clause of the Chinese Evidence Rule has regulated.Scholars define it as pre-determined effect.However,there are still some problems after analyzing the theory and cases.For example,the meaning of the fact and pre-determined effect is not clear.The subject scope of pre-determined effect is too broad.And it is a high possibility that the confidentiality rule will be violated and the third party's right will be infringed.So it is necessary to define the meaning of the pre-determined effect again.Considering the hardship to differ the fact-finding and law-applying processes,it is more practical to put the two together and name them as“matter”.The matter defined by previous arbitration has pre-determined effect.It is a unique effect in Chinese civil procedure law,which is different from res judicata and issue estoppel.If one party can provide evidence to show that the matter has been defined in the previous arbitration,the litigation can just quote it except that the reason to opposite this effect is reasonable.Due to the confidentiality,party autonomy and flexibility of commercial arbitration,the pre-determined effect can only be used in the following two situation:first,the parties are the same in arbitration and litigation.Second,the party who wants to cause pre-determined effect is not one of the parties in arbitration.