| |
1. Arbitration Systems in China
In September 1st, 1995, the Arbitration Law has begun to be
implemented by Chinese government. Compared with former arbitration
system, this law has peculiar characteristics. For instance,
uniform arbitration systems throughout the country has been
established, the scope of arbitration design has become more
specific, arbitration organs have transformed their working
style by introducing more humanity into their work while reducing
former administrative characteristics, the willingness of
the parties will be fully considered and the specific style
of the supervision of the court over arbitration should be
definitely regulated.
Arbitration, especially commercial arbitration has been accepted
and attached great importance to by all parties in the commercial
dispute.
Up to now, more than 170 arbitration organs have been established
and reconstructed of Chinese governments at all levels. More
than 30 thousand arbitrators have been absorbed in the army
of arbitrators, more than 140 thousand arbitration cases have
been dealt with by accumulation, and the total amount of bid
has reached up as high as 230 billion Yuan. And the number
of persons involved in the cases has reached up as high as
50 countries and regions,the growth rate of commercial arbitrations
dealt with throughout the country has been growing with a
rate of more than 25%.
2. The role of arbitration in China's commercial disputes
2.1 Arbitration has not grown powerful enough in the settlement
of China's commercial disputes.
Modern arbitration systems in China have been formulated in
China for more than 10 years, in particular, the amount of
arbitration over commercial disputes in recent years has been
growing gradually and even doubled. However, great difference
still remains when compared with the amount of commercial
lawsuit dealt with by courts. Take the statistical data of
the State Council in 2002 for example, the total amount of
commercial arbitration cases dealt with by 168 arbitration
committee throughout the nation has reached up to 17959, and
total amount of money involved is 34.2 billion Yuan. According
to the statistical data of the high court, in 2002, the contract
lawsuit dealt by the court is 226,695. And the proportion
that arbitration cases have taken up lawsuit cases is only
0.79%.(Zhang,2004)
Author of the paper believes that China's commercial development
has long been constrained in the past 2000 years. People tend
to deal with their disputes through courts, and they are not
accustomed to use social strength to eliminate the conflicts
within the market economy. And this inertial way of thinking
still remains. Of course, this can also be related with currently
operated arbitration regulation for China's arbitration system
has no final effectiveness.
2.2 Rigid nature of the role of arbitration in China's Commercial
disputes
China's arbitration system is different from western countries'
long developed and evolved arbitration system in that Chinese
government attempts to plant a well designed arbitration system
into a society that has been experiencing transformation.
This born nature of plantation in China's arbitration has
become too rigid and stubborn in dealing with this complex
commercial dispute. For instance, both parties wish to settle
one of their commercial disputes. The result is that although
the dispute has been resolved, former harmonious relations
would no longer exist. Cooperation that has been formed through
years has been broken because of arbitration, so that the
parties often believe that the resolution of problems through
arbitration do no pay.
2.3 The administrative nature renders all parties in commercial
disputes doubt the neutrality and justice.
According to the Arbitration Law, the arbitration committee
is founded by the related departments in the government and
the union of commerce. The arbitration committee is separate
from administrative organs so that it is not subject to the
administrative organs. However, the real situations is that
administrative organs interfere into the arbitration activities,
and some local governments even try to make arbitration committee
the functional departments of the governments, and are accustomed
to interfere into the work of arbitration committee with administrative
measures. For instance, some newly-rebuilt arbitration committee
is founded depending on the fund raised by the law office
of government, and the arbitration conferences are often organized
by related organizations of the State Council. (Song;Zhao,2000)The
following measures have seriously affected the healthy development
of the arbitration business of China. Under the protection
of the administrative power of the government, people tend
to doubt on the neutrality and justice of arbitration, so
that the arbitration organizations would lose the credit.
3. Problems existing in China's arbitration execution
3.1 Difficulties in China's arbitration execution
4.Reform propositions of arbitration persecution
4.1 Arbitrators are endow with participation rights in judicatory
supervision.
t is strongly suggested that the opinions of arbitrators be
fully considered before the court's final decision. Arbitrators'
permission to participate in judicatory supervision can help
judges acquire more proof and the principle of righteous procedures
can be ensured.
4.2 All parties in arbitration are endow with appealing right
and retrial right.
The writer believes that the endowment of appealing right
and retrial right can help reduce the appearance of mistakes
in judicatory supervision, and the lawful interests of all
parties can be more effectively protected. (sun,2002)
4.3 Cancellation of the court's virtual supervision of the
arbitration trial
China's accession to WTO has made arbitration in compliance
with international trend. The virtual supervision of the court's
arbitration trial should be cancelled, which had better be
clearly regulated in the Law of Arbitration.
4.4 Establishment of China Arbitration Association
4.3 Perfection of the subsidiary measures that help persecute
arbitration
Reference:
|