商事仲裁调解中的新问题及其对策分析
发布时间：2018-09-03 15:04
【摘要】：英国大法官Michael Kerr曾经说过：“我对诉讼的看法已经改变，将来是属于替代性纠纷解决方式（ADR）的。”的确，越来越多的国家开始重视ADR的构建，相关立法亦逐步得到完善。例如中国，2009年最高人民法院所出台的《最高人民法院关于建立健全诉讼与非诉讼相衔接的矛盾纠纷解决机制的若干意见》就明确地表示在充分发挥审判权的规范，引导和监督作用的前提下，促进如仲裁，调解等非诉讼纠纷解决方式的发展，为社会提供更多元化的纠纷解决方式。商事仲裁中的调解方式作为中国首创的ADR方式，正受到越来越多国家地区以及仲裁机构的接受与适用，因此中国更应当进一步完善商事仲裁中的调解的立法，修正现有问题，为世界提供更多先进的立法经验。而本文正是以商事仲裁中的调解为主题，首先从学理方面探讨其合法性与优势，其次对仲裁员与当事人在实际适用商事仲裁中调解的过程中可能会面对的问题作出分析，并提供解决方案；最后本文还将通过分析各国以及各仲裁机构对商事仲裁中调解的相关立法，提出中国现行法的不足，并尝试给出自己的建议。 本文主要包括五章内容。第一章为“商事仲裁中的调解”，其中包括两小节：第一节将会对仲裁调解的概念以及发展历史作简要的介绍；第二节为本章的主要内容，将会详细介绍学术界对仲裁调解正面与负面的争论。 本文第二章至第四章为仲裁员以及仲裁当事人在仲裁过程中适用仲裁调解时所必须注意以及明晰的三个问题。第二章为“仲裁调解的弃权问题”，，它是仲裁调解能够得以适用的最重要的前提条件，因为当事人若想适用仲裁调解，首要条件便是要放弃对仲裁员兼任调解员的异议权（第一节）；其次，由于调解具有保密性，因此当事人也应当授权仲裁员在担任调解员时不对其所获得的保密信息向仲裁当事人披露，也就是第二节所说的对仲裁员的揭露义务的放弃。第三章为“仲裁调解中的公共政策问题”，该问题集中体现在三点上，同时也是本章中三小节的内容，分别是：第一节公共政策的概念，第二节仲裁调解中的偏袒问题，以及第三节中的仲裁调解与自然公正的问题。本文的第四章是有关仲裁调解中调解涉及第三人利益的问题，第一节将会举列三种有可能涉及第三人利益的情况；第二节将会讨论现有的救济方式是否能够给予第三人充分的保障。 第五章“完善仲裁调解的思考与对策”是本文的最末一章。第一节将会主要介绍各国以及仲裁机构有关仲裁调解的立法与规则，并找出能够借鉴的先进经验；第二节主要围绕着如何完善我国仲裁调解的问题进行，探讨我国现存的相关法律的缺陷并试图给出有用的立法建议。
[Abstract]:Lord Chancellor Michael Kerr once said: "my view of litigation has changed, and in the future it will be (ADR), an alternative dispute resolution." Indeed, more and more countries begin to attach importance to the construction of ADR, and the relevant legislation has been gradually improved. For example, in China, in 2009, the Supreme people's Court's opinions on establishing and perfecting a mechanism for resolving contradictions and disputes linking litigation and non-litigation clearly indicated that the Supreme people's Court was giving full play to the norms of judicial power. Under the premise of guidance and supervision, we should promote the development of non-litigation dispute resolution methods such as arbitration and mediation, and provide more diversified dispute resolution methods for the society. As the first ADR method in China, mediation in commercial arbitration is accepted and applied by more and more countries and arbitration institutions. Therefore, China should further perfect the mediation legislation in commercial arbitration and correct the existing problems. To provide the world with more advanced legislative experience. In this paper, the mediation in commercial arbitration as the theme, first from the theoretical aspects of its legitimacy and advantages, and secondly to the arbitrators and parties in the actual application of commercial arbitration mediation may face the problems. Finally, by analyzing the relevant legislation of mediation in commercial arbitration in various countries and arbitration institutions, this paper puts forward the deficiencies of China's current law and tries to give its own suggestions. This paper mainly includes five chapters. Chapter one is "Conciliation in Commercial Arbitration", which consists of two sections: the first section will give a brief introduction to the concept and history of arbitration conciliation, and the second section will be the main content of this chapter. This paper will introduce the positive and negative arguments of arbitration mediation in academic circles in detail. The second to fourth chapters are the three problems that should be paid attention to and clear when arbitrators and arbitration parties apply arbitration conciliation in the process of arbitration. The second chapter is entitled "waiver of arbitration conciliation", which is the most important precondition for arbitration conciliation to be applicable, because if the parties want to apply arbitration conciliation, The first condition is to waive the right to challenge the arbitrators acting concurrently as conciliators (sect. I); secondly, because of the confidentiality of conciliation, Therefore, the parties should also authorize arbitrators to act as conciliators without disclosing the confidential information they have obtained to the parties to the arbitration, that is, the waiver of the disclosure obligation of the arbitrators referred to in section II. The third chapter is "the public policy question in the arbitration mediation", which is embodied in three aspects, and it is also the content of the three subsections in this chapter, namely, the concept of public policy in the first section, and the favouritism in the arbitration mediation in the second section. And the third section of arbitration mediation and natural justice. The fourth chapter is about the third party's interests in the mediation of arbitration, the first section will list three possible cases involving the interests of the third party; Section II will discuss whether existing remedies can provide adequate protection to third parties. The fifth chapter is the last chapter of this paper. The first section will mainly introduce the legislation and rules of arbitration mediation in various countries and arbitration institutions, and find out the advanced experience that can be used for reference. The second section will focus on how to perfect the arbitration mediation in our country. This paper probes into the defects of the existing relevant laws in China and tries to give some useful legislative suggestions.
【学位授予单位】：深圳大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D997.4
本文编号：2220327
[Abstract]:Lord Chancellor Michael Kerr once said: "my view of litigation has changed, and in the future it will be (ADR), an alternative dispute resolution." Indeed, more and more countries begin to attach importance to the construction of ADR, and the relevant legislation has been gradually improved. For example, in China, in 2009, the Supreme people's Court's opinions on establishing and perfecting a mechanism for resolving contradictions and disputes linking litigation and non-litigation clearly indicated that the Supreme people's Court was giving full play to the norms of judicial power. Under the premise of guidance and supervision, we should promote the development of non-litigation dispute resolution methods such as arbitration and mediation, and provide more diversified dispute resolution methods for the society. As the first ADR method in China, mediation in commercial arbitration is accepted and applied by more and more countries and arbitration institutions. Therefore, China should further perfect the mediation legislation in commercial arbitration and correct the existing problems. To provide the world with more advanced legislative experience. In this paper, the mediation in commercial arbitration as the theme, first from the theoretical aspects of its legitimacy and advantages, and secondly to the arbitrators and parties in the actual application of commercial arbitration mediation may face the problems. Finally, by analyzing the relevant legislation of mediation in commercial arbitration in various countries and arbitration institutions, this paper puts forward the deficiencies of China's current law and tries to give its own suggestions. This paper mainly includes five chapters. Chapter one is "Conciliation in Commercial Arbitration", which consists of two sections: the first section will give a brief introduction to the concept and history of arbitration conciliation, and the second section will be the main content of this chapter. This paper will introduce the positive and negative arguments of arbitration mediation in academic circles in detail. The second to fourth chapters are the three problems that should be paid attention to and clear when arbitrators and arbitration parties apply arbitration conciliation in the process of arbitration. The second chapter is entitled "waiver of arbitration conciliation", which is the most important precondition for arbitration conciliation to be applicable, because if the parties want to apply arbitration conciliation, The first condition is to waive the right to challenge the arbitrators acting concurrently as conciliators (sect. I); secondly, because of the confidentiality of conciliation, Therefore, the parties should also authorize arbitrators to act as conciliators without disclosing the confidential information they have obtained to the parties to the arbitration, that is, the waiver of the disclosure obligation of the arbitrators referred to in section II. The third chapter is "the public policy question in the arbitration mediation", which is embodied in three aspects, and it is also the content of the three subsections in this chapter, namely, the concept of public policy in the first section, and the favouritism in the arbitration mediation in the second section. And the third section of arbitration mediation and natural justice. The fourth chapter is about the third party's interests in the mediation of arbitration, the first section will list three possible cases involving the interests of the third party; Section II will discuss whether existing remedies can provide adequate protection to third parties. The fifth chapter is the last chapter of this paper. The first section will mainly introduce the legislation and rules of arbitration mediation in various countries and arbitration institutions, and find out the advanced experience that can be used for reference. The second section will focus on how to perfect the arbitration mediation in our country. This paper probes into the defects of the existing relevant laws in China and tries to give some useful legislative suggestions.
【学位授予单位】：深圳大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D997.4
【参考文献】
相关期刊论文 前2条
1 曹志勋;;我国仲裁调解案外人救济途径评述[J];北京仲裁;2011年01期
2 王小莉;;仲裁调解书有关法律问题辨析[J];仲裁研究;2008年04期
本文编号：2220327
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