反垄断法在国际商事仲裁中的适用
发布时间：2018-08-21 09:38
【摘要】：反垄断法与国际商事仲裁原本是沿着不同轨迹运行的两种制度。前者是为促进自由竞争而对市场主体的自由进行一定限制的法律,而后者则是为有效地解决民商事纠纷而极大限度地奉行当事人自主原则的争议解决机制。然而,这两个不同领域在涉及反垄断法的争议事项必须递交仲裁的情况下必然产生交会。也就是在这种背景下产生了反垄断法在国际商事仲裁中的适用问题。本文立足于这一事实,围绕反垄断法能否在国际商事仲裁中适用,如果可以,如何适用以及在反垄断事项仲裁的整个过程中如何保障反垄断法的适用与正确适用的思路展开,研究和探讨反垄断法在国际商事仲裁适用中引发的各种问题,以期揭示反垄断法在国际商事仲裁适用领域的立法、司法及仲裁实践的发展趋势,从而为建构国际反垄断争议仲裁解决机制打下基础。为此,本文共分六部分,前后附有引言和结论。 第一章以论证国际反垄断争议的可仲裁性为核心,阐明反垄断法在国际商事仲裁中适用的理论基础。为此,该章首先分别审视了反垄断法与国际商事仲裁制度的特点,其次明确界定国际商事仲裁中所解决的反垄断争议系为因垄断行为而引发的民商事争议,最后综合采用规范分析、比较分析与实证分析的方法对国际反垄断争议的可仲裁性进行了多角度分析,指出反垄断法与国际商事仲裁的关系虽然看似冲突但实际上却彼此协调,各国关于可仲裁性的一般标准的规定并不排斥反垄断争议的可仲裁性,同时,主要国家关于反垄断争议可仲裁性的专门立法、相关司法实践及国际商会国际仲裁院的仲裁实践也充分表明国际反垄断争议的可仲裁性已成为国际社会广泛接受的现实。 第二章论证了仲裁员在国际反垄断争议产生后如何确立其适用反垄断法的权力。仲裁员适用反垄断法的权力取决于两个因素：一是各国关于国际反垄断争议可仲裁性的法律规定；二是当事人的意愿。首先,国际反垄断争议的可仲裁性虽已为大部分国家的立法和司法实践所接受,但这并不能保证各国关于反垄断争议可仲裁性的范围及其适用条件等方面不存在冲突。这样,在具体反垄断争议的国际仲裁中,仲裁员仍需要确定反垄断争议可仲裁性应适用的法律。法院地法、仲裁地法、调整仲裁协议的法律常被视为解决可仲裁性法律适用的法律,但本章认为仲裁庭在确定反垄断争议可仲裁性事项的准据法时应结合反垄断法的特点与案件的具体情形对冲突法要素进行质与量的综合评估,即采用FriedrichK.Juenger所倡导的"目的论方法"；其次,当事人将反垄断争议递交仲裁的意愿主要见之于他们所签订合同中的仲裁条款。仲裁员为取得其对反垄断争议的管辖权必须依据一定的法律对仲裁条款进行解释以查清其是否涵盖反垄断争议。但在仲裁实践中,仲裁条款本身既可能因违反反垄断法而无效也可能因主合同违反反垄断法而无效,同时,有效的仲裁条款是否涵盖反垄断争议也常因反垄断争议的性质而引发质疑,尽管如此,仲裁理论与国际商事仲裁实践表明一般意义上的仲裁条款通常涵盖反垄断争议,亦即,仲裁员适用反垄断法的权力除非当事人刻意将反垄断争议排除在外,否则并不因反垄断法的特点与反垄断争议的性质而受到影响。 第三章论证仲裁员适用反垄断法的义务及其来源。仲裁员不仅有权力而且有义务适用反垄断法。仲裁员适用反垄断法的义务为反垄断法在国际商事仲裁中适用提供了保障。仲裁员的此种义务既可能源自是当事人的要求,也可能源于一国法律的规定,或者是国际商事仲裁制度发展的需要。仲裁员适用反垄断法的义务来源并不因反垄断法的适用是由当事人直接提出,还是由仲裁员依职权提出而存在不同。虽然仲裁员依职权适用反垄断法常常因与国际商事仲裁的特点如仲裁的自治性相抵触而备受质疑,但这种抵触关系可以通过仲裁员在依职权适用反垄断法时遵守国际商事制度中的其他重要原则来加以协调,而不是否定这种义务的存在。 第四章论述仲裁员发现拟适用反垄断法的方法。在国际仲裁案件中,特定的反垄断争议可能涉及多国或地区反垄断法,并引发若干存在冲突的反垄断法的适用。仲裁员由此需要确定适用何国或何种反垄断法。该问题的解决主要取决于仲裁员确定反垄断法的方法。为此,本章在分析可能适用的反垄断法的类别、可适用性及其法律冲突的基础上,首先结合反垄断法的强制法性质及其法律适用上的自身要求,论证了仲裁员在确定在反垄断争议准据法时应该采用Pierre Mayer教授所首先倡导的“强制性规则方法”,即在确定特定争议应适用何国强制性规则时,应以强制性规则的性质为主要考察依据而可以不考虑当事人所选择的法律规则；其次文章比较分析了不同学者就实体强制性规则法律适用所提出的各种理论,并分析了这些理论对反垄断争议准据法的确定所具有的借鉴意义；再次,文章采用比较分析与实证分析方法探讨了主要国家与地区关于反垄断法法律适用的立法与司法实践对仲裁实践的借鉴作用；随后,文章结合国际商会仲裁院所仲裁的若干反垄断争议案件分析了仲裁实践中确定反垄断法的实际做法。最后该章建议,仲裁员在确定反垄断争议准据法时应该采用GARY B. BORN所主张的能把当事人利益与国家利益之间协调的冲突法路径,同时,立法者可以结合反垄断法在法律适用上的自身特点,仿照瑞士1987年《国际私法典》第19条关于强制性规定的法律适用规定,制定确定国际反垄断争议准据法的冲突规范。 第五章主要探讨了国际仲裁员为纠正违反反垄断法行为所能采用的救济方式。反垄断法下的救济方式本质上属于国内法的范畴。各国反垄断法所规定的救济方式虽然不尽相同,但具有较强的体系性,且从不同角度可对其作出不同的分类。但具有可仲裁性并能为仲裁员所用的救济方式主要有两种类型：一是仲裁员根据表面证据有理由怀疑存在限制竞争行为而可以采取的临时救济措施：二是仲裁员依据所适用的反垄断法确定所指控的垄断行为确实存在,且其不在豁免之列情况下而必须采取的民事救济方式。为之,本章在界定了国际商事仲裁适用反垄断法中所能采用的救济方式的基础上,首先分析了仲裁员为有效裁判涉及反垄断法的案件而采用的临时救济措施,其中重点分析了因反垄断法的特点而使国际商事仲裁中的临时措施在发布的条件、发布的标准以及发布机构的选择上所具有的特点。其次结合国际商会国际仲裁院与主要国家的仲裁实践,实证分析了仲裁员具体适用包括宣告限制竞争协议无效、禁令与损害赔偿等较为普遍的几种民事救济方式的状况。 第六章也是本文的最后一章采用规范分析、比较分析与实证分析方法从法院、反垄断法专门执行机构、仲裁员的角度探究了他们在保障反垄断法在国际商事仲裁中得以适用、正确适用、不被当事人所滥用等方面所起的作用。该章首先重点探讨了法院为保障反垄断法在国际商事仲裁的适用而在仲裁裁决执行阶段对涉及反垄断法问题的仲裁裁决依据公共政策事项标准对仲裁裁决所进行的审查问题,指出法院进行审查时不宜采用最高标准,即为避免仲裁程序中出现任何逃避反垄断法规定的风险而对仲裁案件的全部程序和证据进行严格的审查,也不宜采用最低原则,即为了避免危及仲裁裁决所具有的终局性,仅限于审查仲裁员是否在反垄断法问题出现时确实受理了反垄断法问题并进行了适当裁定；而较为可取的办法是平衡分析法,该方法可以说是最低原则的变体,其目的是求得仲裁终局性与基本公共政策考量因素之间的平衡,它要求仲裁员应根据违反反垄断法的限制竞争行为与公共政策相抵触的性质进行分析,在确定仲裁裁决从根本上违反公共政策的时候,国内法庭才能够撤销或拒绝执行仲裁裁决；其次,该章阐明了反垄断法专门执行机构作为维持与促进市场竞争、保障反垄断法规则适用的公共机构,为行使其职能不仅在反垄断争议仲裁中应当事人或仲裁员请求就反垄断法的适用提供适当的支持,而且在出现违反反垄断法的情况时,可以依职权对此采用一定的方式进行干预,从而保障反垄断法在国际商事仲裁中的适用与最大程度上的正确适用。最后,该章探讨了仲裁员在保障反垄断法适用方面所起的作用,指出仲裁员在保障反垄断法适用方面所起的作用最为突出,但仲裁员可能因为自身的原因,譬如仲裁员可能越权或疏忽而导致仲裁成为当事人规避反垄断法的一种手段,为此加强仲裁员的自律与责任就可能成为反垄断法适用的有效保障手段。
[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.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2014
【分类号】：D997.4;D996.1
，
本文编号：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.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2014
【分类号】：D997.4;D996.1
，
本文编号：2195308
本文链接：https://www.wllwen.com/falvlunwen/guojifa/2195308.html
