I. About the arbitration agreement
As the basis of arbitration right, the importance of arbitration agreement to arbitration theory and practice is self-evident. Combined with the style of arbitration law and related theories, the author thinks that we can understand the arbitration agreement from the following aspects and comment on the interpretation of arbitration law.
(1) Form of arbitration agreement
Theoretically, the form of arbitration agreement requires written form, because although arbitration agreement belongs to the contract category because of the autonomy of the parties, it is different from the general civil contract in nature. It is a contract in which the parties choose to settle disputes, and it is a punishment for the right of action. The litigant's right of action belongs to the category of the right of judicial claim, which is a basic constitutional right of the litigant and also a basic litigation right of the litigant.
Of course, from the perspective of a sovereign country, this involves the choice of procedures for dispute settlement between the parties. With the establishment of the country, public relief has gradually replaced private relief, becoming a monopoly mode when the rights of the parties are violated or the legal relationship is disputed, and private relief has gradually been marginalized. In modern countries, private remedies are allowed only under the circumstances specified by law, and the state monopolizes the dispute settlement procedure. As a non-governmental organization, the award of the arbitration institution has the final legal effect and can be used as the basis for implementation. At the same time, whether to arbitrate or not depends on the parties' choice of the form of arbitration agreement.
Therefore, the arbitration agreement is different from the general civil contract, and it must be in legal form. For the sake of system prudence and evidence preservation, most modern countries, including China, generally stipulate that arbitration agreements should be in written form. As for what is written form, Article 16 of the Arbitration Law does not list it. Article 1 of the Interpretation of Arbitration Law stipulates that an arbitration agreement reached in the form of data messages is also an effective form of arbitration agreement. This provision seems to be in line with the legislative spirit embodied in the Electronic Signature Law, because the Electronic Signature Law excludes matters involving personal relations, real estate rights and interests, public service and so on. However, the matters dealt with in the arbitration agreement are actually the choice of dispute settlement procedures, and an effective arbitration agreement is more meaningful because it excludes the legal jurisdiction enjoyed by the state over the disputed matters. At the same time, due to the difficulty of technical operation, the data message itself has problems in its authenticity proof and evidence preservation.
To sum up, the judicial interpretation has adopted a broad attitude towards the effectiveness of the form of arbitration agreement. Although it has the effect of encouraging arbitration and expanding arbitration to solve disputes, it is not authoritative enough to deal with such a major issue. Therefore, we should still limit the form of arbitration agreement to the traditional way, adopt a more conservative attitude, and stipulate that the traditional written form is more appropriate, instead of making provisions rashly when the technology and procedures are immature.
In addition, the expression of this article needs to be improved in legislative technology. Because other written forms corresponding to the arbitration clause refer to a separate arbitration agreement, that is, an arbitration contract, this article uses letters, data messages and contracts side by side. In fact, both letters and data messages appear in the form of recording the contents of contracts, which should be letter contracts and data message contracts respectively. It can be seen that the contract here should be a superordinate concept of letters and data messages, and cannot be used side by side.
(2) The basic contents of the arbitration agreement
1. Expression of intention to request arbitration
The expression of intention to request arbitration is an important content of all arbitration agreements, and it can also be said that it is the primary content of effective arbitration agreements. The arbitration agreement is embodied by the expression of the intention to request arbitration in the arbitration agreement. Usually, the requirement for the expression of the intention to request arbitration in the arbitration agreement is clear and affirmative, that is, the arbitration right is granted to the arbitration tribunal in an indisputable way in the arbitration agreement. [2]
However, in arbitration practice, there are a large number of cases in which the parties agree in the arbitration agreement or arbitration clause that disputes between the two parties can be brought to court for arbitration. According to the usual understanding, because the arbitration agreement fails to exclude the jurisdiction of the court, it is impossible to assume that the parties have a clear and affirmative arbitration expression. [3] Therefore, Article 7 of the Interpretation of Arbitration Law holds that the arbitration agreement in this case is invalid. The author believes that it is inappropriate to simply deny the validity of the arbitration agreement in this case. Because there is still the intention of the parties to choose arbitration in such an agreement or clause, based on the strong autonomy of the arbitration law, the understanding of the first item of the second paragraph of Article 16 of the arbitration law should be lenient. Especially in practice, although some arbitration clauses stipulate two ways to solve disputes, the arbitration commission has clearly stipulated in the arbitration methods. In this case, it should be acknowledged that both parties have expressed their intention to request arbitration.
In addition, there are some problems in the expression of this article [5]. Arbitration jurisdiction is different from judicial jurisdiction, the former is based on the choice of the parties and the latter is based on the provisions of the law. Therefore, the acquisition of arbitration jurisdiction must be based on the validity of the arbitration agreement. The validity of the arbitration agreement may be due to the original validity of the arbitration agreement, or it may be due to the correction of the parties' behavior or the presumption of validity when the parties are lazy in exercising their rights. In fact, the effective solution of the parties' correction is still the authenticity of the parties' wishes and their independent choice. According to the legislative intent, if the parties lose their rights and the arbitration agreement is presumed to be valid, it should also be about the authenticity of the parties' will. At the same time, from another perspective, the issue of jurisdiction should also be determined by arbitration institutions or courts according to their functions and powers. Therefore, all cases in which the arbitration agreement is invalid cannot be presumed to be valid because the parties lose their rights. However, this provision violates the above principle, because the parties agree that disputes can be submitted to an arbitration institution for arbitration or brought to court, and it is improper to presume that the arbitration agreement is invalid because the parties have not raised objections within the statutory time limit.
Corresponding to the denial of the parties' intention to request arbitration from the above angle, the interpretation of the Arbitration Law also denies the autonomy of the parties from another angle. A careful study of Article 11 of the Interpretation shows that the two "should" expressions in this article seem to be suspected of forcing the parties to arbitrate. According to the existing legal provisions, the parties can actually reach an agreement to waive arbitration through subsequent litigation [6], while the existing international conventions and corresponding procedures involving civil and commercial affairs that China has joined are generally non-mandatory clauses, and most of them can be excluded or explicitly applied through the express choice of the parties. How can there be "compulsory" arbitration? Furthermore, according to the logic of the second paragraph, the source of this arbitration right becomes an international treaty rather than the autonomy of the parties, which obviously violates the original intention of arbitration.
2. Arbitration matters
The interpretation of arbitration law stipulates the scope of the matters referred to in contract disputes, which has certain positive significance in the judicial environment of China today. The disputes arising from the establishment, validity, alteration, transfer, performance, liability for breach of contract, interpretation and rescission of the contract stipulated in Article 2 of the Interpretation are all so-called contract disputes, which are really superfluous, because according to the general theory of contract law, these matters are all contract disputes. If there are differences in the application of the law, one party should solve them through the application of contract law; Both of them also reflect the backwardness of legislative technology, the "clarity" of the dogmatic understanding of the legal applier and the deliberate misinterpretation of the already clear legal provisions, which should be solved by the judge system.
In fact, the definition of the scope of "contract dispute" can be strictly limited to its literal meaning, or it can be interpreted loosely for the sake of judicial policy to solve practical confusion. For example, when the master contract and the slave contract have different agreements on dispute settlement or arbitration, how to conduct the arbitration procedure and how to investigate the effective scope of the arbitration agreement are all urgent problems to be solved. Regrettably, this judicial interpretation is not as good as this.
3. Selected Arbitration Commission
Because the current legislation in China explicitly recognizes institutional arbitration and indirectly excludes ad hoc arbitration [7], the problems in practice also focus on the selection of arbitration committees. In practice, the following situations mainly occur:
(1) The agreement on the name of the arbitration commission is unclear: both parties have agreed to arbitrate disputes by an arbitration commission in a city, or the name of the arbitration institution is omitted.
(2) Only the arbitration rules applicable to the dispute are agreed, but the arbitration institution is not: if both parties agree that the arbitration rules of Arbitration Committee A shall apply to the dispute, Arbitration Committee A shall not be agreed to arbitrate.
(3) two arbitration institutions are agreed: if both parties agree to arbitrate by Arbitration Committee A or B;
(4) The issue of only agreeing on the place of arbitration but not the arbitration institution: If both parties agree that the dispute shall be arbitrated by the Arbitration Commission of Place A;
In the case of (1), the solution given in Article 3 of the Interpretation of Arbitration Law is very positive, which is a reaffirmation of the previous reply [8] and gives it universal application effect.
Case (2), Article 4 of the Interpretation of Arbitration Law gives a more reasonable solution and provides a more practical exception [9]: "Except that the parties reach a supplementary agreement or can determine the arbitration institution according to the agreed arbitration rules".
(III) Article 5 of the Interpretation of the Arbitration Law stipulates that "the parties may choose an arbitration institution by agreement to apply for arbitration; If the parties fail to reach an agreement on the choice of arbitration institution, the arbitration agreement shall be invalid. " The author thinks that this clause is a restriction on the expression of the parties' will. Because after the actual dispute, the opposition between the parties is generally great, and it is difficult to reach an agreement. According to the provisions of this clause, it is actually equivalent to denying the previous expression of intention of both parties to request arbitration, and once an arbitration case involving foreign factors is involved, the arbitration right of the arbitration commission in China is ruled out. It should be noted that this clause is also a negation of the Supreme People's Court's previous Opinions on Handling Similar Problems [10].
Case (4) Article 6 of the Interpretation of Arbitration Law further subdivides the two cases and handles them separately. For the case that there is only one local arbitration institution, it is regarded as an agreed arbitration institution, which also reiterates the previous reply [1 1] and gives it universal significance. In the case of more than two arbitration institutions, the Supreme People's Court adopted a relatively conservative attitude, restricted the parties' expression of will, and once again stressed the need to "choose to reach an agreement". This explanation can be said to be a further restriction on the previous similar reply [12].
(c) On the independence of the arbitration clause
The independence of arbitration clause means that the arbitration clause, as a clause of the main contract, can still exist independently of other clauses of the main contract, although it is attached to the main contract [13]. In this regard, Article 10 of the Interpretation of Arbitration Law clearly stipulates that "the contract does not take effect or is revoked after it is established" does not affect the validity of the arbitration agreement, and it also stipulates that "the contract is not established and does not affect the validity of the arbitration agreement" when "the parties reach an arbitration agreement on the dispute when concluding the contract". Therefore, combining with Article 19 of Arbitration Law, the independence legislation of arbitration clause has been fully affirmed.
(4) On the issue of the third party in the scope of validity of the arbitration agreement.
The scope of validity of arbitration agreement can be understood from four aspects-in rem (i.e. arbitration matters), in person, in court and in arbitration institution. According to the traditional theory, the personal effect of arbitration agreement is limited to binding both parties, and it cannot bind people outside the arbitration agreement. With the development of practice, whether the arbitration agreement is binding on the third party other than the agreement, and under what circumstances, has attracted more and more attention from the theoretical and practical circles. Theoretical circles have conducted extensive and in-depth discussions. Some scholars summarize this as "the expansion of the arbitration agreement to the unsigned third party", and some scholars divide the unsigned third party into two categories to study-the change of the arbitration parties and the arbitration third party. The Interpretation of Arbitration Law made a positive and cautious response to this. However, judging from Articles 8 and 9 of the Interpretation of the Arbitration Law, it is only stipulated that when the parties merge, divide or die, the validity of the arbitration agreement extends to the rights and obligations of the original arbitration agreement or the successor; When the creditor's rights and debts are transferred in whole or in part, the arbitration agreement is valid for the transferee. In other words, there are only two situations in which the arbitration parties change, but can other situations such as insurance subrogation, parent company of holding subsidiary, third party in altruistic contract be bound by the arbitration agreement signed by the parties? The explanation failed to give a clear answer. It can be seen that the provisions of this interpretation on the expansion of the effectiveness of arbitration agreements need to be refined.
Two, about the court hearing cases involving arbitration procedures.
(1) Cases in which the arbitration agreement is confirmed to be valid
According to the arbitration law, both the people's court and the arbitration commission have the right to confirm the validity of the arbitration agreement. The Interpretation of Arbitration Law standardizes the court level, trial organization and applicable law that challenges the validity of arbitration agreement, and clarifies the meaning of "first hearing" stipulated in Article 26 of Arbitration Law. It should be noted that the Interpretation of Arbitration Law once again clarifies [14] that the court with jurisdiction over the objection to the arbitration agreement is the intermediate court, and determines the courts with jurisdiction over foreign-related arbitration and maritime disputes respectively. At the same time, the judicial organization is a collegiate bench, and the applicable law is clarified when reviewing the effectiveness of foreign-related arbitration agreements. These provisions are conducive to solving long-standing disputes in practice and have very important guiding significance. However, for such cases, there are no provisions on the trial period, the applicable trial procedures, the functions and powers of the people's courts, the status and rights of arbitration institutions, the status and litigation rights of the questioned parties, the collection of evidence, the examination and judgment, and the burden of proof, which brings a lot of confusion to the specific procedures [15].
Combined with the relevant judicial interpretation in the Supreme People's Court [16], the author thinks that mediation, appeal and retrial are not allowed in the trial of such cases [17]; Because this kind of trial solves the problem of the choice of the parties' relief procedures, it does not finally determine the ownership of the parties' substantive rights, which tends to pursue judicial efficiency; Therefore, it is appropriate to integrate and balance the various value requirements of civil litigation and position it as a special trial procedure.
(2) Cases in which arbitral awards are revoked.
1. Interpretation of the applicable conditions for cancellation of arbitration
Analyzing Article 17-20 of the Interpretation of Arbitration Law, it is not difficult to find that the above provisions are all aimed at further clarifying the applicable conditions for revoking arbitration. In practice, the court's revocation of arbitral awards often exceeds the statutory revocation conditions, so it is of great practical significance to further clarify the applicable conditions.
2. About re-arbitration
Compared with the general provisions in Article 6 1 of the Arbitration Law, the provisions in Article 2 1-Article 23 of the Interpretation of the Arbitration Law are much more detailed. The above provisions have detailed provisions on the conditions for applying for re-arbitration, the specific reasons for re-arbitration, the cancellation procedures for re-arbitration, and the rights and time limit for the parties to apply for cancellation again. However, there are still some problems worthy of further clarification: for example, the subject of re-arbitration? What is the effect of the original arbitration award after the re-arbitration procedure begins? In re-arbitration, whether the parties can withdraw the arbitration application or give up part of the arbitration request, etc. This makes many differences still exist in the practice of re-arbitration.
3. On the Trial of Revoking the Arbitral Award
Article 58 of the Arbitration Law only stipulates that the case of revoking the arbitral award shall be tried by the collegiate bench of the intermediate people's court, while Article 24 of the Interpretation of the Arbitration Law clearly stipulates that the people's court shall form a collegiate bench to try and ask the parties. On the surface, the interpretation of arbitration law provides further procedural provisions for the trial of cases in which arbitral awards have been revoked. However, what is the key point, that is, what procedures should be applied by the intermediate people's court in hearing cases of revocation of arbitral awards? How about the trial limit? Does the counterpart of the arbitration award revocation procedure exist? Are members of the arbitral tribunal entitled to participate in [18]? This explanation is not clearly defined. Because the procedures applied by the people's court in hearing such cases are not clear, when the collegiate bench of the people's court hears the case of revoking the arbitral award, the position of the parties will inevitably be questioned. It is difficult to solve the problems such as what procedural rights it enjoys, which leads to the same procedural confusion as the case of confirming the validity of the arbitration agreement.
Three. Cases concerning the enforcement of arbitral awards
(a) The issue of the competent court for the enforcement of arbitral awards
Article 29 of the Interpretation of Arbitration Law stipulates that a case in which a party applies for enforcement of an arbitral award shall be under the jurisdiction of the intermediate people's court where the person subjected to execution has his domicile or where the property subjected to execution is located. Therefore, the competent court applying for non-enforcement of the arbitral award is also the intermediate people's court. However, since this provision does not specify the nature of applying for enforcement of arbitral awards, it can be understood that this provision applies to both foreign-related arbitral awards and domestic arbitral awards. If it is, it means that the domestic arbitration award, which is also the basis of execution by the people's court, may have a higher level of execution jurisdiction than the court's judgment and other enforcement basis.
(2) The issue of non-enforcement of arbitral awards.
Article 28 of the Interpretation of Arbitration Law stipulates: "The people's court shall not support the request of the parties not to execute the arbitration conciliation statement or the arbitration award made according to the settlement agreement reached by the parties." Such a provision fully respects the reconciliation intention of the parties.
However, in practice, it is a pity that there is no corresponding regulation on the case handling procedure for applying for non-enforcement of arbitral awards. For this kind of cases, there are no norms such as trial limit, applicable trial procedure, the functions and powers of the people's courts, the status and rights of arbitration institutions, the status and litigation rights of the inquired parties, the collection, examination and judgment of evidence, and the burden of proof, which make the cases that confirm the validity of arbitration agreements face the same procedural confusion. Of course, regarding the procedure of ruling not to execute the arbitral award, in fact, in the case of canceling the procedure, corresponding coordination can be carried out, that is, the procedure of ruling not to execute the arbitral award can be considered without making provisions.
Four, on the people's court to the arbitration institution to adjust the volume and send the ruling and other issues.
According to the first paragraph of Article 30 of the Interpretation of the Arbitration Law, when the people's court hears a case of revocation and enforcement of an arbitral award, it may ask the arbitration institution to make an explanation or obtain the arbitration file from the relevant arbitration institution. The author believes that this is necessary for the court to supervise arbitration, but the status and litigation rights of arbitration institutions in such cases have not been further refined. It is worth noting that because the rulings made by the people's courts in trying such cases are directly and closely related to the arbitration institutions, the people's courts "should" send these rulings to the relevant arbitration institutions, instead of just "sending them to the relevant arbitration institutions" as in the second paragraph of Article 30 of the Interpretation of Arbitration Law [19]. Furthermore, referring to the fourth paragraph of Article 2 17 of the Civil Procedure Law [20], this kind of "service" should also be the duty of the people's court to handle such cases, not just an optional authority.
In addition, regarding the legality of the interpretation of the Arbitration Law, that is, around the nature of the Supreme People's Court's judicial interpretation power and the scope of the interpretation of the Arbitration Law, there are many aspects worthy of in-depth consideration in China's academic theory and legal practice, which need more theoretical exploration and legislative authorization to gradually eliminate doubts and contradictions.
However, although the above comments take the form of questions, they are mostly based on reflection and promotion. In fact, the Interpretation of Arbitration Law has made positive, clear and specific provisions on many issues in the process of people's courts' supervision of arbitration activities, which will have a far-reaching impact on China's judicial practice and even the development of arbitration. However, we must also clearly realize that there are still many controversial issues in arbitration practice that cannot be solved by this judicial interpretation, and we hope that these issues will be further improved with the development of practice.