Tip: Introduction to International Commercial Arbitration

In international commercial exchanges, subjective disputes or disputes are unavoidable. An important content and task of international commercial law is how to adopt appropriate methods to resolve international commercial disputes fairly and reasonably, so as to ensure the smooth progress of international commercial transactions. There are generally three ways to resolve various disputes in international commercial relations: reconciliation or mediation, arbitration and judicial litigation, among which arbitration is widely used.

International commercial arbitration means that the parties to an international commercial relationship, after a dispute arises, voluntarily submit the dispute to an ad hoc arbitration institution or an international permanent arbitration institution for trial according to the arbitration clause or arbitration agreement. Arbitrate on the principle of fairness and reasonableness to resolve disputes.

Arbitration is a more common way to resolve international commercial disputes. Compared with conciliation, mediation and judicial litigation, it has the following characteristics: ①The parties have greater autonomy, and the choice of arbitration methods, arbitration venues, arbitration institutions, and arbitrators The parties are free to make decisions about the arbitration procedure, the law applicable to the arbitration, etc.; ② the procedure is flexible, fast and timely, and the fees are low; ③ it is necessary and mandatory, which is reflected in the mandatory nature of the arbitration agreement and the mandatory nature of the arbitration award ; ④ is conducive to maintaining the relationship between the parties, and can coordinate the conflict between different laws.

(1) International commercial arbitration institutions

Arbitration institutions are non-governmental institutions independently selected by the parties in international commercial relations to resolve their disputes, and their jurisdiction to hear cases depends entirely on the choice and authorization of the parties. International commercial arbitration institutions can be divided into ad hoc arbitration institutions and permanent arbitration institutions. An ad hoc arbitration institution refers to an ad hoc arbitration institution that is temporarily formed by arbitrators recommended by both parties after a dispute arises in accordance with the arbitration clause or arbitration agreement of the parties. A permanent arbitration institution refers to a permanent arbitration institution established in accordance with international treaties or domestic laws with a fixed organization and location, and fixed arbitration procedure standards.

At present, several permanent commercial arbitration institutions with great influence in the world are: International Chamber of Commerce Arbitration Court, established in 1923, headquartered in Paris; Stockholm Commercial Arbitration Institute, Sweden, established in 1917; London Arbitration Institute, established Founded in 1892; American Arbitration Association, founded in 1926 and headquartered in New York; Zurich Chamber of Commerce Arbitration Institute, founded in 1911; my country's international commercial arbitration institutions are mainly the China International Economic and Trade Arbitration Commission, which was established in 1956 and was adjusted twice in 1980 and 1988. Its headquarter is located in Beijing, with branches in Shenzhen and Shanghai; Year, adjusted in 1988, headquartered in Beijing.

(2) Arbitration Agreement

The arbitration agreement is a written agreement between the two parties expressing their willingness to submit their disputes to arbitration. It is the basis for the arbitration institution or arbitrator to accept dispute cases. There are two forms of arbitration agreement: one is the arbitration clause, which means that both partiesIn the case of a treaty or contract, a clause in the treaty or contract agrees to submit disputes that may arise therein to arbitration. An arbitration clause is concluded before a dispute occurs, and is the most common and important arbitration agreement; one is an arbitration agreement, which refers to an agreement concluded by both parties after a dispute arises, expressing their agreement to submit the dispute that has occurred to arbitration for resolution, This is a separate agreement from the main contract. The most important function of the arbitration agreement is to exclude the jurisdiction of the court over the disputed case, so that the parties can only submit the dispute to arbitration, so that the arbitral tribunal or arbitrator can obtain jurisdiction.

The arbitration agreement should be as clear, specific and complete as possible. Generally speaking, the arbitration agreement should include the following contents: ①The place of arbitration, which is a key content, related to the choice of arbitration procedure and applicable law; ②Arbitration institution; ③Arbitration procedure Standards, generally speaking, which arbitration institution arbitrates in, the arbitration standards of the institution will apply, but some countries allow the parties to choose arbitrarily; ④The validity of the arbitral award refers to whether the award is final and binding on the parties, Whether it is possible to appeal to the court, etc., these must be specified in the arbitration agreement.

(3) International Commercial Arbitration Procedures

International commercial arbitration procedures generally include the following stages: ①The application and acceptance of arbitration; ②The composition of the arbitral tribunal. The ad hoc arbitration institution can directly serve as an arbitral tribunal, while the permanent arbitral institution has its own arbitral tribunal. The arbitral tribunal is composed of arbitrators selected by both parties or appointed by the relevant arbitration institution based on the authorization of the parties or ex officio; ③ Arbitration hearing, which is divided into oral hearing and written hearing; ④ Arbitration award. After the arbitral tribunal makes its award, the arbitration proceeding comes to an end.

(4) Enforcement of Arbitration Awards

If the parties refuse to enforce the arbitral award, the issue of arbitration enforcement will arise. This includes two situations: the enforcement of domestic arbitral awards and the enforcement of foreign arbitral awards. The former procedure is relatively simple; while the enforcement of foreign arbitral awards is more complicated, because it involves not only the interests of both parties, but also the interests of the two countries. Therefore, various countries have stipulated some restrictions on the enforcement of foreign arbitral awards. Many disagreements. There are three international conventions on the recognition and enforcement of foreign arbitral awards: ① the "1923 Geneva Arbitration Clause Protocol" concluded in 1923; ② the "Convention on the Enforcement of Foreign Arbitral Awards" concluded in 1927; <>, referred to as the New York Convention. my country formally acceded to the New York Convention on December 2, 1986, but there are two reservations, one is only applicable to the awards made between the two contracting parties, and the other is only applicable to disputes arising from commercial legal relations.

Jurisdiction in International Commercial Arbitration

Zhang Wei

In a general sense, the jurisdiction of international commercial arbitration is also called authority, and national jurisdiction is the power of the state to govern people and things. Jurisdiction is primarily concerned with making and enforcing laws, including administrative and judicial jurisdiction. In some countries, the exercise of jurisdiction is often through the judiciary (court), and jurisdiction and judicial jurisdiction are equivalent in certain circumstances. Jurisdiction in international commercial arbitration refers to the power of international commercial arbitration institutions or arbitral tribunals, where arbitrators have the power to hear specific international commercial disputes and make binding awards.

The jurisdiction of international commercial arbitration is different from the jurisdiction of the courts, and they are two corresponding powers. Theoretically speaking, international commercial arbitration must have an arbitration agreement between the two parties as the basis for the international commercial arbitration institution to hear and adjudicate the dispute. However, the jurisdiction of the court comes directly from the provisions of national laws and does not require the authorization of both parties. . As long as one party initiates a lawsuit and meets the legal requirements for filing a lawsuit, the jurisdiction of the court will be established, while the jurisdiction of international commercial arbitration shall be owned by an arbitral tribunal composed of arbitrators selected or entrusted by the parties, and It can be exercised in accordance with the legal provisions of the procedure chosen by the parties, while the jurisdiction of the court is enjoyed and exercised by the court on behalf of the state, and the parties have no right to choose the judge or the applicable law.

Due to the incompatibility of international commercial arbitration jurisdiction and court jurisdiction over the same case, in principle, as long as the parties have entered into an arbitration agreement, the dispute cannot be submitted to the court for resolution through litigation, that is, the court cannot Jurisdiction over disputes with an arbitration agreement between them. Conversely, if the two parties have not concluded an arbitration agreement in advance, even if one party applies for arbitration, the arbitral tribunal's arbitration jurisdiction cannot be obtained accordingly.

However, in arbitration practice, the jurisdiction of international commercial arbitration and the jurisdiction of the court are not static for the same case, and it may change due to the behavior of the parties.

For example: both parties have stipulated an arbitration clause in the contract. After a dispute arises, one party brings a lawsuit to the court. The court filed a lawsuit. After accepting the case, the court reviewed the arbitration agreement in accordance with the law and found that the arbitration clause was flawed. At the same time, because the other party failed to raise a defense against the jurisdiction of the court during the effective defense period, the case officially entered the litigation procedure.

In arbitration practice, under what circumstances, the arbitration jurisdiction can be transformed into the jurisdiction of the court because the behavior of the parties is usually clearly recognized by the arbitration law. The jurisdiction of international commercial arbitration, the scope of arbitration, the scope of acceptance, etc. There are similarities.

The scope of arbitration refers to what kind of disputes between the parties allowed by law or international treaties can apply for arbitration, that is, arbitrable issues. The scope of cases refers to a specific arbitration institution or arbitrator in the case of ad hoc arbitration Which disputes can be accepted refers to the jurisdiction of the arbitration institution or arbitrator.

Within a country, the scope of arbitration is consistent with the scope of cases accepted by all arbitration institutions (including ad hoc arbitration). Arbitration jurisdiction and the admissibility of a dispute are the first issues that need to be resolved before starting the arbitration procedure. When the arbitration institution decides whether to accept the applicant's application for arbitration, it must first look at whether it is admissible. If there is a clear arbitration request , Whether the form of the arbitration application meets the requirements of the arbitration institution shall be subject to a formal review before the case is accepted. Since the case acceptance review is based on the materials provided by the applicant party, its judgment will inevitably be uncertain. Therefore, the arbitration institution may accept an arbitration application from the applicant, but may not have jurisdiction over the dispute. An arbitration agreement accepts a certain case, but it is found that the arbitration agreement is invalid after trial, so it cannot exercise jurisdiction over the case.

Jurisdiction is the prerequisite for truly resolving international commercial disputes. Without jurisdiction, even if a formal award is made, it may be revoked or refused to be enforced by the court, which is stipulated in the arbitration laws of various countries. For example, Article 802 of Japan's "Civil Procedure Code", British "Arbitration Law 1996", Article 1052 of French "Code of Civil Procedure", etc., Article 5, Paragraph 1, Item 3 and Item 2 of the 1958 New York Convention Paragraph 1, Article 36 of the United Nations Model Law on International Commercial Arbitration has similar provisions.

Source: People's Court News, February 7, 2002