Research On Legal Risk Prevention And Control Of China’s Overseas Energy Investment Under The “Belt And Road Initiative”

Commercial arbitration is an internationally accepted way to settle disputes.Temporary arbitration is a kind of commercial arbitration.Compared with institutional arbitration,temporary arbitration has the advantages of more autonomy,convenience,cooperation,high efficiency and flexibility.This is also the reason why temporary arbitration has been flourishing in all countries in the world through the ages.Unfortunately,China’s Arbitration Law excludes temporary arbitration from China’s arbitration legal system with the requirement that “an effective arbitration agreement must meet the requirements of the selected arbitration committee”.This is contrary to the international development trend and is not conducive to the establishment of a diversified dispute resolution mechanism in our country,nor is it conducive to the development of arbitration in our country.In December 2016,the supreme people’s court issued the opinions on providing judicial guarantee for the construction of pilot free trade zones（hereinafter referred to as the “safeguard opinions”）,which broke the “imprisonment” of temporary arbitration in China in the innovative form of “three specific conditions” for registered enterprises in the free trade zones.Subsequently,the administrative committee of hengqin new district,zhuhai city,guangdong province and zhuhai arbitration commission jointly issued the “hengqin provisional arbitration rules for the pilot free trade zone”（hereinafter referred to as “hengqin rules”）,which is the first provisional arbitration rules in China and provides an institutional guarantee for the implementation of the provisional arbitration in the free trade zone.However,due to the long-term absence of temporary arbitration,China lacks relevant experience,talents and supporting systems.In addition,China’s “arbitration law” has not established the legitimacy of temporary arbitration,so temporary arbitration is faced with many difficulties in the pilot free trade zone.Based on the legal problems existing in the trial implementation of temporary arbitration in free trade zones,this paper explores the specific ways to improve China’s temporary arbitration.This article is divided into five parts except introduction.In the first part,the author summarizes the characteristics and advantages of temporary arbitration by analyzing the concept of temporary arbitration.Then from the point of view of the unification of international treaty and domestic legislation and the improvement of China’s arbitration system,the author analyzes the necessity of the pilot provisional arbitration of free trade zone.Finally,this paper analyzes the feasibility of pilot temporary arbitration in free trade zone from three perspectives: the characteristics of commercial disputes in free trade zone and the advantages of temporary arbitration,the nature of pilot field of free trade zone and the accumulation of theories on the study of temporary arbitration in Chinese academic circles.In the second part,the author analyzes the legal problems of the interim arbitration in the pilot free trade zone from the aspects of the attributes of “the special place in the mainland” in the safeguard opinions,the innovative measures of the interim arbitration in the free trade zone,the applicable subjects and rules of the interim arbitration,the selection and supervision of the interim arbitrators,and the subject and scope of external intervention.In the third part,the author analyzes the advanced experience of the United Nations International Law and Trade Commission Model Law on International Commercial Arbitration（hereinafter referred to as the Model Law）,the British Arbitration Law of1996,the German Civil Procedure Law and the Hong Kong International Arbitration Regulations in Hong Kong,China in the areas of place of arbitration,arbitration agreement,interim measures,jurisdiction of arbitration tribunal,intervention of courts and arbitration institutions.In the fourth part,based on the current situation of the development of temporary arbitration in our country,the author takes the abolishment of negative clauses in the Arbitration Law as the legislative mode to establish the legal status of temporary arbitration in our country’s laws.In the specific system construction,the author takes the clear legal attribute of the place of arbitration,the expansion of the scope of the subject of application of temporary arbitration,and the reduction of the requirements on the validity of temporary arbitrators and temporary arbitration agreements as the construction path.Moreover,the system of exemption from liability and the mechanism of liability and supervision for temporary arbitrators have been established.On the subject of external intervention,the right to interfere of courts,arbitration agencies and specialized service agencies has been defined,and the time and scope of their intervention have been reasonably set.The fifth part "conclusion",the author through the summary of the full text,expressed a good vision for China to establish the legitimacy of temporary arbitration and establish a perfect temporary arbitration system,looking forward to the vigorous development of China’s international arbitration.