The Legal Obstacle And Breakthrough Way Of Introducing Ad Hoc Arbitration System In China

As a traditional form of commercial arbitration,ad hoc arbitration is more able to realize the principle of party autonomy than institutional arbitration.In addition,its flexibility and autonomy make it more and more favored by the disputing parties.With the development of modern arbitration system,institutional arbitration has gradually come into people’s vision and constitutes an important part of international arbitration together with ad hoc arbitration.Ad hoc arbitration is not only the traditional form of modern arbitration system in European and American countries,but also constitutes the institutional subject and core of arbitration legislation in terms of system structure,and plays an important role in commercial dispute settlement.Therefore,ad hoc arbitration and institutional arbitration are not opposed to each other,but promote and complement each other.They are an indispensable part of modern commercial arbitration.However,Articles 16 and 18 of the Arbitration Law of the people’s Republic of China promulgated in 1995 stipulate leads to the substantive negation of the legal status of ad hoc arbitration in the mainland.With the release of the Opinions on the Provision of Judicial Safeguards for the Construction of Free Trade Zones,Provisional Arbitration Rules of Hengqin Free Trade Zone and the promotion and development of the "The Belt and Road" initiative in China,in the field of international commercial dispute resolution,China needs more flexible and diversified dispute resolution methods.In this paper,the author discusses the basic concept of ad hoc arbitration.Under the background of the development status of China’s arbitration system,by analyzing the necessity and limited breakthrough of establishing ad hoc arbitration system in China and referring to the ad hoc arbitration system of other countries and regions,the author tries to give reasonable and feasible system suggestions from multiple dimensions,in order to build an ad hoc arbitration system assisted by arbitration institutions.This paper is divided into four parts.The first part first uses the concept analysis method to clarify the concept and characteristics of ad hoc arbitration,studies and discusses the dialectical relationship between ad hoc arbitration and institutional arbitration,This paper expounds the respective advantages and limitations of ad hoc arbitration and institutional arbitration,and uses the value analysis method to analyze its value and problems from the necessity of establishing ad hoc arbitration in China.The second part is based on the detailed discussion of the current situation of China’s ad hoc arbitration,and analyzes the limited breakthroughs and limitations of ad hoc arbitration.At present,from the three aspects of market economy,social environment and legal atmosphere,China has the basic conditions for the introduction of ad hoc arbitration.The third part elaborates the problems faced by the introduction of the ad hoc arbitration system in China,mainly from the newly issued Arbitration Law of the people’s Republic of China(Revised)(Draft for comments)to discuss its improvements and deficiencies.In terms of its provisions in the field of foreign affairs,there are loopholes in the specific procedures such as the initiation of arbitration proceedings,the establishment of arbitration tribunal and the responsibilities of arbitrators.In addition to combing the shortcomings,the fourth part puts forward specific ideas on how to build the ad hoc arbitration system in China,including some suggestions on the corresponding provisions of specific procedural omissions,such as the improvement of auxiliary procedural matters of ad hoc arbitration,the selection and by selection of arbitrators,avoidance and liability.In addition,it is suggested to judge the effectiveness of the arbitration agreement with the place of arbitration as the core and delete the provisions covered by Chinese law,Finally,I give some thoughts on the filing system,hoping to do my best to promote the development of China’s arbitration industry.