| Ad hoc arbitration has a place in the dispute settlement mechanism due to its high degree of autonomy,flexibility,and "quasi-judicial nature".Although The Arbitration Law of the People’s Republic of China does not recognize the legality of ad hoc arbitration,"The Opinions on Providing Judicial Guarantee for The Construction of Pilot Free Trade Zone"(Fafa [2016] No.34)(hereinafter referred to as "Opinions on Judicial Guarantee")provides directions for the development of the ad hoc arbitration system in the free trade zone.As a special economic zone and a pilot free trade zone,Hainan has legislative advantages,resource advantages,and environmental advantages brought by national policy support.However,Hainan’s business environment has not yet reached the ideal situation.The institutional arbitration can not meet the needs of fast-growing economic and trade exchanges,and the inability to resolve commercial disputes quickly limits the optimization of the business environment to a certain extent.Therefore,it is urgent to establish reasonable rules of ad hoc arbitration and its supporting guarantee systems.At the same time,Zhuhai Hengqin Free Trade Zone has taken the lead in formulating ad hoc arbitration rules,which is an important step for China to construct a ad hoc arbitration system.Hainan must not only study and introduce the ad hoc arbitration system,but also make a breakthrough on the basis of combining Hainan’s own characteristics.This article intends to analyze the theoretical and practical status of the ad hoc arbitration system at home and abroad from the basic concepts,with a view to finding breakthroughs in the legislation and judicial assistance of the SAR,and puts forward the concrete construction of the Hainan Free Trade Zone ad hoc arbitration system.This article is divided into four parts:The first part starts from the concept and characteristics,analyzes the advantages and disadvantages of the application of ad hoc arbitration,and then summarizes the necessity and possibility of the establishment of the ad hoc arbitration system in Hainan Free Trade Zone.With the continuous construction and development of free trade zones,the volume of foreign trade in Hainan has become increasingly large,and the disadvantages of single-mode arbitration mechanism has become increasingly prominent in the face of more diversified commercial disputes.At the same time,the construction and development of the Hainan International Arbitration Center also requires ad hoc arbitration as a supplement.In addition,from the analysis of the actual conditions,the successful cases of ad hoc arbitration in Shanghai Free Trade Zone and the business level of China’s arbitration team at the current stage provide practical and intellectual support for Hainan Free Trade Zoneto build a ad hoc arbitration system.The second part mainly analyzes the extraterritorial ad hoc arbitration system in order to find a breakthrough in the construction of the Hainan Free Trade Zone ad hoc arbitration system.By analyzing the "UNCITRAL Arbitration Rules" and the ad hoc arbitration system of the United Kingdom and Chinese Hong Kong,combined with the specific situation of Hainan,from the point of entry of legislation and rule making,judicial assistance and supervision,specific content and details,etc.,it is a ad hoc arbitration system construct and explore suitable theoretical basis and practical experience in Hainan.The third part mainly analyzes the legal dilemma and obstacles faced by current ad hot arbitration system development in China.Due to the late start of commercial arbitration in my country,there are still many problems:the specific content of domestic legislation and international arbitration rules are inconsistent;the legal status of domestic arbitration awards and overseas arbitration awards is not equal;there is an imbalance between the independence and autonomy of ad hoc arbitration and court supervision;the supervision mechanism for arbitrators and arbitration awards is incomplete.These problems hinder the establishment and implementation of the ad hoc arbitration system.The fourth part puts forward specific legal suggestions on the construction of the Hainan Free Trade Zone ad hoc arbitration system.At present,the government has given Hainan strong legal and policy support.Hainan should seize the existing advantages,actively explore the arbitration model,find a legal way to construct a free trade zone ad hoc arbitration system,and innovate and formulate ad hoc arbitration rules with Hainan characteristics.At the same time,Hainan should establish a balanced judicial supervision auxiliary mechanism,and improve the specific content of arbitrator selection and supervision.In the meantime,Hainan also should establish a balanced judicial supervision auxiliary mechanism,and improve the specific content of arbitrator selection and supervision. |
