论仲裁规则在国际商事仲裁实践中的适用与发展
发布时间：2018-07-17 01:00
【摘要】：仲裁规则是指存在于商事仲裁活动中的一整套规定如何进行仲裁活动以及调整仲裁参与人之间法律关系的程序规则。广义上的仲裁规则包括临时仲裁规则和机构仲裁规则。随着国际商事仲裁实践的不断发展,常设仲裁机构如雨后春笋般在世界各地兴起,并相继加入国际仲裁服务市场的竞争,相应地机构仲裁规则也在不断趋于成熟和完善。 当事人意思自治原则是整个仲裁制度赖以建立的基础。关于仲裁规则的适用总结起来有两大特点:一是仲裁规则具有契约性;二是仲裁规则的适用不得与相关的仲裁法规定相抵触。这两大特点也恰好反映了国际商事仲裁规则对“当事人意思自治原则”的承认与制约。仲裁规则与仲裁法在调整对象和调整范围上有重合之处,但究其本质二者的法律性质和法律效力有所不同。仲裁规则是当事人选择适用的,而仲裁法是国家法律规定当事人必须适用的。同时仲裁规则的适用不得与仲裁法特别是其中的强制性规则相抵触。 仲裁协议的有效性是国际商事仲裁的焦点问题。在国际商事仲裁的实践中,当事人所订立的仲裁协议往往不能兼顾到仲裁活动的方方面面。如果当事人在仲裁协议中仅仅选择了适用的仲裁规则,而对仲裁地和仲裁适用的法律只字未提,则通过仲裁规则对仲裁地点的规定,仲裁庭或者法院仍然可以根据《示范法》和《纽约公约》的指引,确认仲裁地国法,从而根据仲裁地国法对国际商事仲裁协议的效力进行判断。 仲裁规则的适用不得与仲裁法特别是其中的强制性规则相抵触。仲裁庭依据某常设机构仲裁规则的规定作出了一项裁决,若该裁决与执行地国的强行法冲突或者违背了当地的公共秩序,则执行地国法院可以拒绝承认和执行该裁决。 考虑到国际商事仲裁制度的实际发展需要,联合国国际贸易法委员会相继修订了1985年《示范法》和1976年《UNCITRAL仲裁规则》。其中关于仲裁协议书面形式、临时措施、仲裁庭组成、仲裁员替换程序和仲裁员责任豁免制度等内容的修改对于众多常设仲裁机构仲裁规则的发展具有深远影响。 在入世10年后,中国的仲裁市场与国际仲裁市场的融合日益深入和具体。我们应该及时发现和研究我国仲裁规则与国际立法、知名仲裁机构仲裁规则存在的差距及原因,积极寻求对策,在仲裁技术上与国际步调保持一致。更为重要的是通过对于《仲裁法》的修改,改变制度性的缺陷,为我国仲裁机构的竞争和仲裁规则的完善提供良好的外部环境。??
[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.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997.4
本文编号：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.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997.4
【参考文献】
相关博士学位论文 前1条
1 袁忠民;我国仲裁机构演变的研究[D];华东政法学院;2006年
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