反壟斷法在國際商事仲裁中的適用
發(fā)布時間：2018-08-21 09:38
【摘要】：反壟斷法與國際商事仲裁原本是沿著不同軌跡運行的兩種制度。前者是為促進自由競爭而對市場主體的自由進行一定限制的法律,而后者則是為有效地解決民商事糾紛而極大限度地奉行當事人自主原則的爭議解決機制。然而,這兩個不同領(lǐng)域在涉及反壟斷法的爭議事項必須遞交仲裁的情況下必然產(chǎn)生交會。也就是在這種背景下產(chǎn)生了反壟斷法在國際商事仲裁中的適用問題。本文立足于這一事實,圍繞反壟斷法能否在國際商事仲裁中適用,如果可以,如何適用以及在反壟斷事項仲裁的整個過程中如何保障反壟斷法的適用與正確適用的思路展開,研究和探討反壟斷法在國際商事仲裁適用中引發(fā)的各種問題,以期揭示反壟斷法在國際商事仲裁適用領(lǐng)域的立法、司法及仲裁實踐的發(fā)展趨勢,從而為建構(gòu)國際反壟斷爭議仲裁解決機制打下基礎(chǔ)。為此,本文共分六部分,前后附有引言和結(jié)論。 第一章以論證國際反壟斷爭議的可仲裁性為核心,闡明反壟斷法在國際商事仲裁中適用的理論基礎(chǔ)。為此,該章首先分別審視了反壟斷法與國際商事仲裁制度的特點,其次明確界定國際商事仲裁中所解決的反壟斷爭議系為因壟斷行為而引發(fā)的民商事爭議,最后綜合采用規(guī)范分析、比較分析與實證分析的方法對國際反壟斷爭議的可仲裁性進行了多角度分析,指出反壟斷法與國際商事仲裁的關(guān)系雖然看似沖突但實際上卻彼此協(xié)調(diào),各國關(guān)于可仲裁性的一般標準的規(guī)定并不排斥反壟斷爭議的可仲裁性,同時,主要國家關(guān)于反壟斷爭議可仲裁性的專門立法、相關(guān)司法實踐及國際商會國際仲裁院的仲裁實踐也充分表明國際反壟斷爭議的可仲裁性已成為國際社會廣泛接受的現(xiàn)實。 第二章論證了仲裁員在國際反壟斷爭議產(chǎn)生后如何確立其適用反壟斷法的權(quán)力。仲裁員適用反壟斷法的權(quán)力取決于兩個因素：一是各國關(guān)于國際反壟斷爭議可仲裁性的法律規(guī)定；二是當事人的意愿。首先,國際反壟斷爭議的可仲裁性雖已為大部分國家的立法和司法實踐所接受,但這并不能保證各國關(guān)于反壟斷爭議可仲裁性的范圍及其適用條件等方面不存在沖突。這樣,在具體反壟斷爭議的國際仲裁中,仲裁員仍需要確定反壟斷爭議可仲裁性應(yīng)適用的法律。法院地法、仲裁地法、調(diào)整仲裁協(xié)議的法律常被視為解決可仲裁性法律適用的法律,但本章認為仲裁庭在確定反壟斷爭議可仲裁性事項的準據(jù)法時應(yīng)結(jié)合反壟斷法的特點與案件的具體情形對沖突法要素進行質(zhì)與量的綜合評估,即采用FriedrichK.Juenger所倡導(dǎo)的"目的論方法"；其次,當事人將反壟斷爭議遞交仲裁的意愿主要見之于他們所簽訂合同中的仲裁條款。仲裁員為取得其對反壟斷爭議的管轄權(quán)必須依據(jù)一定的法律對仲裁條款進行解釋以查清其是否涵蓋反壟斷爭議。但在仲裁實踐中,仲裁條款本身既可能因違反反壟斷法而無效也可能因主合同違反反壟斷法而無效,同時,有效的仲裁條款是否涵蓋反壟斷爭議也常因反壟斷爭議的性質(zhì)而引發(fā)質(zhì)疑,盡管如此,仲裁理論與國際商事仲裁實踐表明一般意義上的仲裁條款通常涵蓋反壟斷爭議,亦即,仲裁員適用反壟斷法的權(quán)力除非當事人刻意將反壟斷爭議排除在外,否則并不因反壟斷法的特點與反壟斷爭議的性質(zhì)而受到影響。 第三章論證仲裁員適用反壟斷法的義務(wù)及其來源。仲裁員不僅有權(quán)力而且有義務(wù)適用反壟斷法。仲裁員適用反壟斷法的義務(wù)為反壟斷法在國際商事仲裁中適用提供了保障。仲裁員的此種義務(wù)既可能源自是當事人的要求,也可能源于一國法律的規(guī)定,或者是國際商事仲裁制度發(fā)展的需要。仲裁員適用反壟斷法的義務(wù)來源并不因反壟斷法的適用是由當事人直接提出,還是由仲裁員依職權(quán)提出而存在不同。雖然仲裁員依職權(quán)適用反壟斷法常常因與國際商事仲裁的特點如仲裁的自治性相抵觸而備受質(zhì)疑,但這種抵觸關(guān)系可以通過仲裁員在依職權(quán)適用反壟斷法時遵守國際商事制度中的其他重要原則來加以協(xié)調(diào),而不是否定這種義務(wù)的存在。 第四章論述仲裁員發(fā)現(xiàn)擬適用反壟斷法的方法。在國際仲裁案件中,特定的反壟斷爭議可能涉及多國或地區(qū)反壟斷法,并引發(fā)若干存在沖突的反壟斷法的適用。仲裁員由此需要確定適用何國或何種反壟斷法。該問題的解決主要取決于仲裁員確定反壟斷法的方法。為此,本章在分析可能適用的反壟斷法的類別、可適用性及其法律沖突的基礎(chǔ)上,首先結(jié)合反壟斷法的強制法性質(zhì)及其法律適用上的自身要求,論證了仲裁員在確定在反壟斷爭議準據(jù)法時應(yīng)該采用Pierre Mayer教授所首先倡導(dǎo)的“強制性規(guī)則方法”,即在確定特定爭議應(yīng)適用何國強制性規(guī)則時,應(yīng)以強制性規(guī)則的性質(zhì)為主要考察依據(jù)而可以不考慮當事人所選擇的法律規(guī)則；其次文章比較分析了不同學(xué)者就實體強制性規(guī)則法律適用所提出的各種理論,并分析了這些理論對反壟斷爭議準據(jù)法的確定所具有的借鑒意義；再次,文章采用比較分析與實證分析方法探討了主要國家與地區(qū)關(guān)于反壟斷法法律適用的立法與司法實踐對仲裁實踐的借鑒作用；隨后,文章結(jié)合國際商會仲裁院所仲裁的若干反壟斷爭議案件分析了仲裁實踐中確定反壟斷法的實際做法。最后該章建議,仲裁員在確定反壟斷爭議準據(jù)法時應(yīng)該采用GARY B. BORN所主張的能把當事人利益與國家利益之間協(xié)調(diào)的沖突法路徑,同時,立法者可以結(jié)合反壟斷法在法律適用上的自身特點,仿照瑞士1987年《國際私法典》第19條關(guān)于強制性規(guī)定的法律適用規(guī)定,制定確定國際反壟斷爭議準據(jù)法的沖突規(guī)范。 第五章主要探討了國際仲裁員為糾正違反反壟斷法行為所能采用的救濟方式。反壟斷法下的救濟方式本質(zhì)上屬于國內(nèi)法的范疇。各國反壟斷法所規(guī)定的救濟方式雖然不盡相同,但具有較強的體系性,且從不同角度可對其作出不同的分類。但具有可仲裁性并能為仲裁員所用的救濟方式主要有兩種類型：一是仲裁員根據(jù)表面證據(jù)有理由懷疑存在限制競爭行為而可以采取的臨時救濟措施：二是仲裁員依據(jù)所適用的反壟斷法確定所指控的壟斷行為確實存在,且其不在豁免之列情況下而必須采取的民事救濟方式。為之,本章在界定了國際商事仲裁適用反壟斷法中所能采用的救濟方式的基礎(chǔ)上,首先分析了仲裁員為有效裁判涉及反壟斷法的案件而采用的臨時救濟措施,其中重點分析了因反壟斷法的特點而使國際商事仲裁中的臨時措施在發(fā)布的條件、發(fā)布的標準以及發(fā)布機構(gòu)的選擇上所具有的特點。其次結(jié)合國際商會國際仲裁院與主要國家的仲裁實踐,實證分析了仲裁員具體適用包括宣告限制競爭協(xié)議無效、禁令與損害賠償?shù)容^為普遍的幾種民事救濟方式的狀況。 第六章也是本文的最后一章采用規(guī)范分析、比較分析與實證分析方法從法院、反壟斷法專門執(zhí)行機構(gòu)、仲裁員的角度探究了他們在保障反壟斷法在國際商事仲裁中得以適用、正確適用、不被當事人所濫用等方面所起的作用。該章首先重點探討了法院為保障反壟斷法在國際商事仲裁的適用而在仲裁裁決執(zhí)行階段對涉及反壟斷法問題的仲裁裁決依據(jù)公共政策事項標準對仲裁裁決所進行的審查問題,指出法院進行審查時不宜采用最高標準,即為避免仲裁程序中出現(xiàn)任何逃避反壟斷法規(guī)定的風(fēng)險而對仲裁案件的全部程序和證據(jù)進行嚴格的審查,也不宜采用最低原則,即為了避免危及仲裁裁決所具有的終局性,僅限于審查仲裁員是否在反壟斷法問題出現(xiàn)時確實受理了反壟斷法問題并進行了適當裁定；而較為可取的辦法是平衡分析法,該方法可以說是最低原則的變體,其目的是求得仲裁終局性與基本公共政策考量因素之間的平衡,它要求仲裁員應(yīng)根據(jù)違反反壟斷法的限制競爭行為與公共政策相抵觸的性質(zhì)進行分析,在確定仲裁裁決從根本上違反公共政策的時候,國內(nèi)法庭才能夠撤銷或拒絕執(zhí)行仲裁裁決；其次,該章闡明了反壟斷法專門執(zhí)行機構(gòu)作為維持與促進市場競爭、保障反壟斷法規(guī)則適用的公共機構(gòu),為行使其職能不僅在反壟斷爭議仲裁中應(yīng)當事人或仲裁員請求就反壟斷法的適用提供適當?shù)闹С?而且在出現(xiàn)違反反壟斷法的情況時,可以依職權(quán)對此采用一定的方式進行干預(yù),從而保障反壟斷法在國際商事仲裁中的適用與最大程度上的正確適用。最后,該章探討了仲裁員在保障反壟斷法適用方面所起的作用,指出仲裁員在保障反壟斷法適用方面所起的作用最為突出,但仲裁員可能因為自身的原因,譬如仲裁員可能越權(quán)或疏忽而導(dǎo)致仲裁成為當事人規(guī)避反壟斷法的一種手段,為此加強仲裁員的自律與責任就可能成為反壟斷法適用的有效保障手段。
[Abstract]:Anti-monopoly law and international commercial arbitration are originally two systems running along different paths. The former is a law which restricts the freedom of market subject in order to promote free competition, while the latter is a dispute settlement mechanism which pursues the principle of party autonomy to the greatest extent in order to effectively solve civil and commercial disputes. In this context, the application of anti-monopoly law in international commercial arbitration has arisen. Based on this fact, this paper focuses on whether anti-monopoly law can be applied in international commercial arbitration, if it can, how to apply and How to ensure the application and correct application of the antitrust law in the whole process of arbitration on antitrust matters is discussed. The problems arising from the application of the antitrust law in international commercial arbitration are studied and discussed in order to reveal the development trend of the legislation, judicature and arbitration practice of the antitrust law in the application of International commercial arbitration. This paper is divided into six parts, with introduction and conclusion.
Chapter one, focusing on arbitrability of international antitrust disputes, expounds the theoretical basis for the application of antitrust law in international commercial arbitration. To this end, the chapter first examines the characteristics of antitrust law and international commercial arbitration system respectively, and then clearly defines the antitrust disputes settled in international commercial arbitration as monopolistic acts. The civil and commercial disputes caused by it are analyzed from different angles by the methods of normative analysis, comparative analysis and empirical analysis. It is pointed out that although the relationship between antitrust law and international commercial arbitration is seemingly conflicting, it is actually coordinated with each other, and the general standards of arbitrability are stipulated by various countries. It does not exclude the arbitrability of antitrust disputes. At the same time, the special legislation of major countries on the arbitrability of antitrust disputes, the relevant judicial practice and the arbitration practice of the International Arbitration Court of the International Chamber of Commerce also fully demonstrate that the arbitrability of international antitrust disputes has become a reality widely accepted by the international community.
The second chapter demonstrates how the arbitrator establishes his power to apply the anti-monopoly law after the international anti-monopoly dispute has arisen. Although sex has been accepted by the legislation and judicial practice of most countries, it does not guarantee that there is no conflict in the scope and applicable conditions of the arbitrability of antimonopoly disputes. Thus, in the international arbitration of specific antimonopoly disputes, arbitrators still need to determine the applicable law of the arbitrability of antimonopoly disputes. The law of the place of arbitration, the law of the place of arbitration, and the law of the adjustment of the arbitration agreement are often regarded as the law applicable to arbitrability. But this chapter holds that the arbitral tribunal should make a comprehensive assessment of the elements of the conflict of laws, i.e. Friedri, in determining the applicable law for the arbitrability of antitrust disputes in combination with the characteristics of the antitrust law and the specific circumstances of the case. The "teleological approach" advocated by chK. Juenger; secondly, the parties'willingness to submit antitrust disputes to arbitration is mainly based on the arbitration clauses in their contracts. In order to gain jurisdiction over antitrust disputes, arbitrators must interpret the arbitration clauses according to certain laws to find out whether they cover antitrust disputes. However, in arbitration practice, the arbitration clause itself may be invalid because it violates the anti-monopoly law or because the main contract violates the anti-monopoly law. At the same time, whether the effective arbitration clause covers the anti-monopoly disputes is often questioned because of the nature of the anti-monopoly disputes. Nevertheless, arbitration theory and international commercial arbitration practice show general agreement. Arbitration clauses in sense usually cover antitrust disputes, that is, the arbitrator's power to apply antitrust law is not affected by the characteristics of antitrust law and the nature of antitrust disputes unless the parties deliberately exclude antitrust disputes.
Chapter Three discusses the obligations and sources of the arbitrator's application of the antitrust law. The arbitrator has not only the power but also the obligation to apply the antitrust law. The source of an arbitrator's obligation to apply the antitrust law is not different from whether the application of the antitrust law is proposed directly by the parties concerned or by the arbitrator in accordance with his or her authority. Although the arbitrator's application of the antitrust law in accordance with his or her authority is often due to the characteristics of international commercial arbitration. If the autonomy of arbitration is conflicted, the conflict can be reconciled by the arbitrator's compliance with other important principles of the international commercial system when applying the anti-monopoly law in accordance with his authority, rather than denying the existence of such an obligation.
Chapter Four discusses the method by which an arbitrator finds out that an antitrust law is to be applied. In international arbitration cases, specific antitrust disputes may involve multinational or regional antitrust laws and lead to the application of several conflicting antitrust laws. The arbitrator therefore needs to determine which country or what kind of antitrust law to apply. The solution of this problem depends mainly on Zhong Zhong. To this end, on the basis of the analysis of the categories, applicability and conflicts of laws that may be applicable to antitrust law, this chapter first demonstrates that arbitrators should adopt Pierre Mayer's teaching in determining the applicable law for antitrust disputes in the light of the nature of the mandatory law of antitrust law and their own requirements for the application of the law. The "mandatory rule method" advocated first is that the nature of mandatory rules should be taken as the main basis for investigation when determining which mandatory rules should be applied to specific disputes without considering the legal rules chosen by the parties; secondly, the article compares and analyzes the legal application of substantive mandatory rules proposed by different scholars. Thirdly, the article uses comparative analysis and empirical analysis methods to explore the reference of legislation and judicial practice of major countries and regions on the application of anti-monopoly law to arbitration practice; afterwards, the article combines international business. Finally, the chapter suggests that arbitrators should adopt the conflict of laws approach advocated by GARY B. BORN, which may coordinate the interests of the parties and the interests of the state, in determining the applicable law for antitrust disputes. Combining with the characteristics of the application of antitrust law, the conflict norms for determining the applicable law of international antitrust disputes are formulated in accordance with the provisions on the application of compulsory provisions in Article 19 of Switzerland's 1987 Private International Code.
Chapter Five mainly discusses the remedies that international arbitrators can adopt to correct the violation of antitrust law. The remedies under Antitrust Law are essentially within the scope of domestic law. Although the remedies provided by antitrust laws in different countries are different, they have a strong system and can be divided into different parts from different angles. However, there are two main types of remedies that can be arbitrated and used by arbitrators: one is the provisional remedies that arbitrators may take when they have reason to suspect the existence of restrictive competition acts on the basis of prima facie evidence; the other is that arbitrators determine the existence of the alleged monopoly acts according to the applicable anti-monopoly law and that the alleged monopoly acts do not exist. In this chapter, on the basis of defining the remedies that can be adopted in the application of anti-monopoly law to international commercial arbitration, the author first analyzes the interim remedies adopted by arbitrators for the effective adjudication of cases involving anti-monopoly law, with emphasis on the analysis of the anti-monopoly law. Secondly, combined with the arbitration practice of the International Arbitration Court of the International Chamber of Commerce and the major countries, this paper empirically analyzes the specific application of arbitrators, including the declaration of the invalidation of the restriction of competition agreement, injunction and compensation for damages. The general situation of several civil remedies.
Chapter 6 is also the last chapter of this paper, which uses normative analysis, comparative analysis and empirical analysis to explore the role of the courts, special enforcement agencies of anti-monopoly law and arbitrators in safeguarding the application of anti-monopoly law in international commercial arbitration, its correct application and its non-abuse by the parties. This paper probes into the question of the court's examination of Arbitral Awards concerning antitrust law in the enforcement stage of arbitral awards in order to protect the application of antitrust law in international commercial arbitration according to the standards of public policy matters, and points out that the court should not adopt the highest standard in its examination, that is, to avoid appointment in arbitral proceedings. How to evade the risk provided by the anti-monopoly law and strictly examine the whole procedure and evidence of arbitration cases should not adopt the minimum principle, that is, in order to avoid endangering the finality of the arbitral award, only to examine whether the arbitrator did accept the anti-monopoly law question when the anti-monopoly law question arises and make appropriate adjudication The more preferable method is the balance analysis method, which can be said to be a variant of the minimum principle. Its purpose is to find a balance between the final arbitration and the considerations of the basic public policy. It requires arbitrators to analyze the nature of the conflict between the restriction of competition and public policy in violation of the anti-monopoly law and to determine the middle. The domestic court can revoke or refuse to execute the arbitral award when the ruling violates the public policy fundamentally; secondly, this chapter clarifies that the special enforcement agency of antitrust law, as a public institution to maintain and promote market competition and ensure the application of the rules of antitrust law, should not only perform its functions in the arbitration of antitrust disputes. A person or arbitrator requests appropriate support for the application of the anti-monopoly law, and may intervene in certain ways according to his or her authority in case of violation of the anti-monopoly law, so as to guarantee the application of the anti-monopoly law in international commercial arbitration and its maximum correct application. Finally, this chapter discusses the protection of arbitrators. The role of arbitrators in protecting the application of anti-monopoly law is the most prominent. However, arbitrators may become a means of evading anti-monopoly law because of their own reasons, for example, arbitrators may overstep their powers or neglect. Therefore, it is necessary to strengthen the self-discipline and responsibility of arbitrators. It may become an effective guarantee for the application of the antimonopoly law.
【學(xué)位授予單位】：武漢大學(xué)
【學(xué)位級別】：博士
【學(xué)位授予年份】：2014
【分類號】：D997.4;D996.1
，
本文編號：2195308
[Abstract]:Anti-monopoly law and international commercial arbitration are originally two systems running along different paths. The former is a law which restricts the freedom of market subject in order to promote free competition, while the latter is a dispute settlement mechanism which pursues the principle of party autonomy to the greatest extent in order to effectively solve civil and commercial disputes. In this context, the application of anti-monopoly law in international commercial arbitration has arisen. Based on this fact, this paper focuses on whether anti-monopoly law can be applied in international commercial arbitration, if it can, how to apply and How to ensure the application and correct application of the antitrust law in the whole process of arbitration on antitrust matters is discussed. The problems arising from the application of the antitrust law in international commercial arbitration are studied and discussed in order to reveal the development trend of the legislation, judicature and arbitration practice of the antitrust law in the application of International commercial arbitration. This paper is divided into six parts, with introduction and conclusion.
Chapter one, focusing on arbitrability of international antitrust disputes, expounds the theoretical basis for the application of antitrust law in international commercial arbitration. To this end, the chapter first examines the characteristics of antitrust law and international commercial arbitration system respectively, and then clearly defines the antitrust disputes settled in international commercial arbitration as monopolistic acts. The civil and commercial disputes caused by it are analyzed from different angles by the methods of normative analysis, comparative analysis and empirical analysis. It is pointed out that although the relationship between antitrust law and international commercial arbitration is seemingly conflicting, it is actually coordinated with each other, and the general standards of arbitrability are stipulated by various countries. It does not exclude the arbitrability of antitrust disputes. At the same time, the special legislation of major countries on the arbitrability of antitrust disputes, the relevant judicial practice and the arbitration practice of the International Arbitration Court of the International Chamber of Commerce also fully demonstrate that the arbitrability of international antitrust disputes has become a reality widely accepted by the international community.
The second chapter demonstrates how the arbitrator establishes his power to apply the anti-monopoly law after the international anti-monopoly dispute has arisen. Although sex has been accepted by the legislation and judicial practice of most countries, it does not guarantee that there is no conflict in the scope and applicable conditions of the arbitrability of antimonopoly disputes. Thus, in the international arbitration of specific antimonopoly disputes, arbitrators still need to determine the applicable law of the arbitrability of antimonopoly disputes. The law of the place of arbitration, the law of the place of arbitration, and the law of the adjustment of the arbitration agreement are often regarded as the law applicable to arbitrability. But this chapter holds that the arbitral tribunal should make a comprehensive assessment of the elements of the conflict of laws, i.e. Friedri, in determining the applicable law for the arbitrability of antitrust disputes in combination with the characteristics of the antitrust law and the specific circumstances of the case. The "teleological approach" advocated by chK. Juenger; secondly, the parties'willingness to submit antitrust disputes to arbitration is mainly based on the arbitration clauses in their contracts. In order to gain jurisdiction over antitrust disputes, arbitrators must interpret the arbitration clauses according to certain laws to find out whether they cover antitrust disputes. However, in arbitration practice, the arbitration clause itself may be invalid because it violates the anti-monopoly law or because the main contract violates the anti-monopoly law. At the same time, whether the effective arbitration clause covers the anti-monopoly disputes is often questioned because of the nature of the anti-monopoly disputes. Nevertheless, arbitration theory and international commercial arbitration practice show general agreement. Arbitration clauses in sense usually cover antitrust disputes, that is, the arbitrator's power to apply antitrust law is not affected by the characteristics of antitrust law and the nature of antitrust disputes unless the parties deliberately exclude antitrust disputes.
Chapter Three discusses the obligations and sources of the arbitrator's application of the antitrust law. The arbitrator has not only the power but also the obligation to apply the antitrust law. The source of an arbitrator's obligation to apply the antitrust law is not different from whether the application of the antitrust law is proposed directly by the parties concerned or by the arbitrator in accordance with his or her authority. Although the arbitrator's application of the antitrust law in accordance with his or her authority is often due to the characteristics of international commercial arbitration. If the autonomy of arbitration is conflicted, the conflict can be reconciled by the arbitrator's compliance with other important principles of the international commercial system when applying the anti-monopoly law in accordance with his authority, rather than denying the existence of such an obligation.
Chapter Four discusses the method by which an arbitrator finds out that an antitrust law is to be applied. In international arbitration cases, specific antitrust disputes may involve multinational or regional antitrust laws and lead to the application of several conflicting antitrust laws. The arbitrator therefore needs to determine which country or what kind of antitrust law to apply. The solution of this problem depends mainly on Zhong Zhong. To this end, on the basis of the analysis of the categories, applicability and conflicts of laws that may be applicable to antitrust law, this chapter first demonstrates that arbitrators should adopt Pierre Mayer's teaching in determining the applicable law for antitrust disputes in the light of the nature of the mandatory law of antitrust law and their own requirements for the application of the law. The "mandatory rule method" advocated first is that the nature of mandatory rules should be taken as the main basis for investigation when determining which mandatory rules should be applied to specific disputes without considering the legal rules chosen by the parties; secondly, the article compares and analyzes the legal application of substantive mandatory rules proposed by different scholars. Thirdly, the article uses comparative analysis and empirical analysis methods to explore the reference of legislation and judicial practice of major countries and regions on the application of anti-monopoly law to arbitration practice; afterwards, the article combines international business. Finally, the chapter suggests that arbitrators should adopt the conflict of laws approach advocated by GARY B. BORN, which may coordinate the interests of the parties and the interests of the state, in determining the applicable law for antitrust disputes. Combining with the characteristics of the application of antitrust law, the conflict norms for determining the applicable law of international antitrust disputes are formulated in accordance with the provisions on the application of compulsory provisions in Article 19 of Switzerland's 1987 Private International Code.
Chapter Five mainly discusses the remedies that international arbitrators can adopt to correct the violation of antitrust law. The remedies under Antitrust Law are essentially within the scope of domestic law. Although the remedies provided by antitrust laws in different countries are different, they have a strong system and can be divided into different parts from different angles. However, there are two main types of remedies that can be arbitrated and used by arbitrators: one is the provisional remedies that arbitrators may take when they have reason to suspect the existence of restrictive competition acts on the basis of prima facie evidence; the other is that arbitrators determine the existence of the alleged monopoly acts according to the applicable anti-monopoly law and that the alleged monopoly acts do not exist. In this chapter, on the basis of defining the remedies that can be adopted in the application of anti-monopoly law to international commercial arbitration, the author first analyzes the interim remedies adopted by arbitrators for the effective adjudication of cases involving anti-monopoly law, with emphasis on the analysis of the anti-monopoly law. Secondly, combined with the arbitration practice of the International Arbitration Court of the International Chamber of Commerce and the major countries, this paper empirically analyzes the specific application of arbitrators, including the declaration of the invalidation of the restriction of competition agreement, injunction and compensation for damages. The general situation of several civil remedies.
Chapter 6 is also the last chapter of this paper, which uses normative analysis, comparative analysis and empirical analysis to explore the role of the courts, special enforcement agencies of anti-monopoly law and arbitrators in safeguarding the application of anti-monopoly law in international commercial arbitration, its correct application and its non-abuse by the parties. This paper probes into the question of the court's examination of Arbitral Awards concerning antitrust law in the enforcement stage of arbitral awards in order to protect the application of antitrust law in international commercial arbitration according to the standards of public policy matters, and points out that the court should not adopt the highest standard in its examination, that is, to avoid appointment in arbitral proceedings. How to evade the risk provided by the anti-monopoly law and strictly examine the whole procedure and evidence of arbitration cases should not adopt the minimum principle, that is, in order to avoid endangering the finality of the arbitral award, only to examine whether the arbitrator did accept the anti-monopoly law question when the anti-monopoly law question arises and make appropriate adjudication The more preferable method is the balance analysis method, which can be said to be a variant of the minimum principle. Its purpose is to find a balance between the final arbitration and the considerations of the basic public policy. It requires arbitrators to analyze the nature of the conflict between the restriction of competition and public policy in violation of the anti-monopoly law and to determine the middle. The domestic court can revoke or refuse to execute the arbitral award when the ruling violates the public policy fundamentally; secondly, this chapter clarifies that the special enforcement agency of antitrust law, as a public institution to maintain and promote market competition and ensure the application of the rules of antitrust law, should not only perform its functions in the arbitration of antitrust disputes. A person or arbitrator requests appropriate support for the application of the anti-monopoly law, and may intervene in certain ways according to his or her authority in case of violation of the anti-monopoly law, so as to guarantee the application of the anti-monopoly law in international commercial arbitration and its maximum correct application. Finally, this chapter discusses the protection of arbitrators. The role of arbitrators in protecting the application of anti-monopoly law is the most prominent. However, arbitrators may become a means of evading anti-monopoly law because of their own reasons, for example, arbitrators may overstep their powers or neglect. Therefore, it is necessary to strengthen the self-discipline and responsibility of arbitrators. It may become an effective guarantee for the application of the antimonopoly law.
【學(xué)位授予單位】：武漢大學(xué)
【學(xué)位級別】：博士
【學(xué)位授予年份】：2014
【分類號】：D997.4;D996.1
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本文編號：2195308
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