論仲裁規(guī)則在國際商事仲裁實(shí)踐中的適用與發(fā)展
發(fā)布時(shí)間：2018-07-17 01:00
【摘要】：仲裁規(guī)則是指存在于商事仲裁活動(dòng)中的一整套規(guī)定如何進(jìn)行仲裁活動(dòng)以及調(diào)整仲裁參與人之間法律關(guān)系的程序規(guī)則。廣義上的仲裁規(guī)則包括臨時(shí)仲裁規(guī)則和機(jī)構(gòu)仲裁規(guī)則。隨著國際商事仲裁實(shí)踐的不斷發(fā)展,常設(shè)仲裁機(jī)構(gòu)如雨后春筍般在世界各地興起,并相繼加入國際仲裁服務(wù)市場的競爭,相應(yīng)地機(jī)構(gòu)仲裁規(guī)則也在不斷趨于成熟和完善。 當(dāng)事人意思自治原則是整個(gè)仲裁制度賴以建立的基礎(chǔ)。關(guān)于仲裁規(guī)則的適用總結(jié)起來有兩大特點(diǎn):一是仲裁規(guī)則具有契約性;二是仲裁規(guī)則的適用不得與相關(guān)的仲裁法規(guī)定相抵觸。這兩大特點(diǎn)也恰好反映了國際商事仲裁規(guī)則對“當(dāng)事人意思自治原則”的承認(rèn)與制約。仲裁規(guī)則與仲裁法在調(diào)整對象和調(diào)整范圍上有重合之處,但究其本質(zhì)二者的法律性質(zhì)和法律效力有所不同。仲裁規(guī)則是當(dāng)事人選擇適用的,而仲裁法是國家法律規(guī)定當(dāng)事人必須適用的。同時(shí)仲裁規(guī)則的適用不得與仲裁法特別是其中的強(qiáng)制性規(guī)則相抵觸。 仲裁協(xié)議的有效性是國際商事仲裁的焦點(diǎn)問題。在國際商事仲裁的實(shí)踐中,當(dāng)事人所訂立的仲裁協(xié)議往往不能兼顧到仲裁活動(dòng)的方方面面。如果當(dāng)事人在仲裁協(xié)議中僅僅選擇了適用的仲裁規(guī)則,而對仲裁地和仲裁適用的法律只字未提,則通過仲裁規(guī)則對仲裁地點(diǎn)的規(guī)定,仲裁庭或者法院仍然可以根據(jù)《示范法》和《紐約公約》的指引,確認(rèn)仲裁地國法,從而根據(jù)仲裁地國法對國際商事仲裁協(xié)議的效力進(jìn)行判斷。 仲裁規(guī)則的適用不得與仲裁法特別是其中的強(qiáng)制性規(guī)則相抵觸。仲裁庭依據(jù)某常設(shè)機(jī)構(gòu)仲裁規(guī)則的規(guī)定作出了一項(xiàng)裁決,若該裁決與執(zhí)行地國的強(qiáng)行法沖突或者違背了當(dāng)?shù)氐墓仓刃?則執(zhí)行地國法院可以拒絕承認(rèn)和執(zhí)行該裁決。 考慮到國際商事仲裁制度的實(shí)際發(fā)展需要,聯(lián)合國國際貿(mào)易法委員會(huì)相繼修訂了1985年《示范法》和1976年《UNCITRAL仲裁規(guī)則》。其中關(guān)于仲裁協(xié)議書面形式、臨時(shí)措施、仲裁庭組成、仲裁員替換程序和仲裁員責(zé)任豁免制度等內(nèi)容的修改對于眾多常設(shè)仲裁機(jī)構(gòu)仲裁規(guī)則的發(fā)展具有深遠(yuǎn)影響。 在入世10年后,中國的仲裁市場與國際仲裁市場的融合日益深入和具體。我們應(yīng)該及時(shí)發(fā)現(xiàn)和研究我國仲裁規(guī)則與國際立法、知名仲裁機(jī)構(gòu)仲裁規(guī)則存在的差距及原因,積極尋求對策,在仲裁技術(shù)上與國際步調(diào)保持一致。更為重要的是通過對于《仲裁法》的修改,改變制度性的缺陷,為我國仲裁機(jī)構(gòu)的競爭和仲裁規(guī)則的完善提供良好的外部環(huán)境。??
[Abstract]:Arbitration rules refer to a set of procedural rules in commercial arbitration that stipulate how to conduct arbitration activities and adjust the legal relations between arbitration participants. The arbitration rules in a broad sense include provisional arbitration rules and institutional arbitration rules. With the continuous development of the practice of international commercial arbitration, the permanent arbitration institutions sprang up all over the world, and joined the competition of the international arbitration service market one after another. Accordingly, the rules of institutional arbitration are becoming more and more mature and perfect. The principle of party autonomy is the foundation of the whole arbitration system. The application of arbitration rules has two characteristics: one is that arbitration rules are contractual; the other is that the application of arbitration rules must not conflict with the relevant arbitration law. These two characteristics also reflect the recognition and restriction of the principle of party autonomy by the rules of international commercial arbitration. There is overlap between arbitration rules and arbitration law in the object and scope of adjustment, but their essence is different in their legal nature and legal effect. The arbitration rules are chosen by the parties, and the arbitration law is required by the national law. At the same time, the application of arbitration rules shall not be inconsistent with arbitration law, especially the mandatory rules therein. The validity of arbitration agreement is the focus of international commercial arbitration. In the practice of international commercial arbitration, the arbitration agreement concluded by the parties often fails to take into account all aspects of arbitration activities. If the parties have chosen only the applicable arbitration rules in the arbitration agreement, and no mention is made of the place of arbitration and the law applicable to the arbitration, the place of arbitration is provided for by the arbitration rules, The arbitral tribunal or court may still confirm the law of the place of arbitration in accordance with the guidelines of the Model Law and the New York Convention, thereby judging the validity of the international commercial arbitration agreement according to the law of the place of arbitration. The application of arbitration rules shall not conflict with arbitration law, in particular the mandatory rules therein. The arbitral tribunal has made an award under the rules of arbitration of a permanent institution, and if the award conflicts with the jus cogens of the State of enforcement or is contrary to the local public order, the court of the enforcing State may refuse to recognize and enforce the award. Considering the practical development needs of the international commercial arbitration system, UNCITRAL revised the 1985 Model Law and the 1976 UNCITRAL Arbitration rules one after another. The revision of written form of arbitration agreement, interim measure, constitution of arbitration tribunal, procedure of arbitrator replacement and exemption of arbitrator liability has far-reaching influence on the development of arbitration rules of many permanent arbitration institutions. Ten years after China's entry into WTO, the integration of China's arbitration market and international arbitration market is becoming more and more profound and concrete. We should find out and study the gap and reason between the arbitration rules of our country and the international legislation and the arbitration rules of famous arbitration institutions in time, actively seek the countermeasures, and keep consistent with the international step in the technology of arbitration. What is more important is to change the institutional defects by modifying the Arbitration Law to provide a good external environment for the competition of our country's arbitration institutions and the perfection of arbitration rules.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D997.4
本文編號：2128325
[Abstract]:Arbitration rules refer to a set of procedural rules in commercial arbitration that stipulate how to conduct arbitration activities and adjust the legal relations between arbitration participants. The arbitration rules in a broad sense include provisional arbitration rules and institutional arbitration rules. With the continuous development of the practice of international commercial arbitration, the permanent arbitration institutions sprang up all over the world, and joined the competition of the international arbitration service market one after another. Accordingly, the rules of institutional arbitration are becoming more and more mature and perfect. The principle of party autonomy is the foundation of the whole arbitration system. The application of arbitration rules has two characteristics: one is that arbitration rules are contractual; the other is that the application of arbitration rules must not conflict with the relevant arbitration law. These two characteristics also reflect the recognition and restriction of the principle of party autonomy by the rules of international commercial arbitration. There is overlap between arbitration rules and arbitration law in the object and scope of adjustment, but their essence is different in their legal nature and legal effect. The arbitration rules are chosen by the parties, and the arbitration law is required by the national law. At the same time, the application of arbitration rules shall not be inconsistent with arbitration law, especially the mandatory rules therein. The validity of arbitration agreement is the focus of international commercial arbitration. In the practice of international commercial arbitration, the arbitration agreement concluded by the parties often fails to take into account all aspects of arbitration activities. If the parties have chosen only the applicable arbitration rules in the arbitration agreement, and no mention is made of the place of arbitration and the law applicable to the arbitration, the place of arbitration is provided for by the arbitration rules, The arbitral tribunal or court may still confirm the law of the place of arbitration in accordance with the guidelines of the Model Law and the New York Convention, thereby judging the validity of the international commercial arbitration agreement according to the law of the place of arbitration. The application of arbitration rules shall not conflict with arbitration law, in particular the mandatory rules therein. The arbitral tribunal has made an award under the rules of arbitration of a permanent institution, and if the award conflicts with the jus cogens of the State of enforcement or is contrary to the local public order, the court of the enforcing State may refuse to recognize and enforce the award. Considering the practical development needs of the international commercial arbitration system, UNCITRAL revised the 1985 Model Law and the 1976 UNCITRAL Arbitration rules one after another. The revision of written form of arbitration agreement, interim measure, constitution of arbitration tribunal, procedure of arbitrator replacement and exemption of arbitrator liability has far-reaching influence on the development of arbitration rules of many permanent arbitration institutions. Ten years after China's entry into WTO, the integration of China's arbitration market and international arbitration market is becoming more and more profound and concrete. We should find out and study the gap and reason between the arbitration rules of our country and the international legislation and the arbitration rules of famous arbitration institutions in time, actively seek the countermeasures, and keep consistent with the international step in the technology of arbitration. What is more important is to change the institutional defects by modifying the Arbitration Law to provide a good external environment for the competition of our country's arbitration institutions and the perfection of arbitration rules.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D997.4
【參考文獻(xiàn)】
相關(guān)博士學(xué)位論文 前1條
1 袁忠民;我國仲裁機(jī)構(gòu)演變的研究[D];華東政法學(xué)院;2006年
，本文編號：2128325
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