涉外民商事诉讼管辖权与国际商事仲裁管辖权的冲突与协调
发布时间：2018-11-26 19:08
【摘要】：随着国际经济交往的加强和国际贸易的发展,国际民商事争议也随之增多。涉外民商事诉讼与国际商事仲裁作为解决争议的两种主要方式,经常会出现冲突,在实践中如何梳理两者之间的关系,避免和消除两者的法律冲突,不仅是理论界应该加以探讨和研究的,更需要各国实践实务界加以努力,兼具理论和实际价值。 本文第一章从民事诉讼中的管辖权入手,分析管辖权的重要性及其背后所涉及的法律实益,并对国际私法中的管辖权概念进行阐述,分析管辖权概念在商事仲裁中的转借使用,接着对涉外民商事诉讼管辖权的根据及其冲突的解决原则进行分析,最后再详细阐述国际商事仲裁管辖权的三个必要要件。 本文第二章对两种管辖权的关系进行了深入辨析,首先找出二者的联系之处,其次分析二者的区别,包括理论根据不同、权力享有者不同、确定原则不同、冲突频率不同、以及法律效果不同几个方面;其次探讨了仲裁管辖权的扩张化趋势,接着说明了法院对仲裁管辖权的司法支持和监督情况。最后探讨两种管辖权冲突产生的根本原因,并以真实案例的形式列举了冲突的表现,为后文协调和解决冲突作准备。 本文第三章从司法对国际商事仲裁的监督的角度进行了比较法研究,包括三个方面,一是司法介入商事仲裁趋势改变的比较研究,二是两种管辖权异议的比较研究,三是冲突解决途径——“并存控制”制度的比较研究,为我们处理好两种冲突提供了思路和大方向。 本文第四章对我国解决涉外民商事诉讼管辖权和国际商事仲裁管辖权冲突的机制构建做了一个设想,首先从立法层面对相关问题进行明确,其次对国内外实践中已经操作过的经验进行了梳理,最后通过相关规则和制度的完善推进法院与仲裁机构的机制衔接,最终促成从立法到实践操作的动态协调和解决冲突机制的建立。
[Abstract]:With the strengthening of international economic exchanges and the development of international trade, international civil and commercial disputes also increase. As two main ways to settle disputes, civil and commercial litigation involving foreign affairs and international commercial arbitration are often in conflict. In practice, how to sort out the relationship between the two, to avoid and eliminate the legal conflicts between the two, It is not only the theoretical circles that should explore and study, but also the practical circles of various countries to work hard, both theoretical and practical value. The first chapter of this paper begins with jurisdiction in civil action, analyzes the importance of jurisdiction and the legal benefits involved in it, and expounds the concept of jurisdiction in private international law, and analyzes the transfer of jurisdiction concept in commercial arbitration. Then it analyzes the basis of jurisdiction of civil and commercial litigation concerning foreign affairs and the principles of resolving conflicts, and finally expounds in detail the three essential elements of jurisdiction of international commercial arbitration. The second chapter makes a deep analysis of the relationship between the two kinds of jurisdiction, first of all, finds out the connection between the two, and then analyzes the differences between the two, including different theoretical basis, different holders of power, different principles of determination, different frequency of conflict. And different aspects of legal effect; Secondly, it discusses the expansion trend of arbitration jurisdiction, and then explains the court's judicial support and supervision of arbitration jurisdiction. Finally, this paper discusses the root causes of the two conflicts of jurisdiction, and lists the manifestations of the conflicts in the form of real cases in order to prepare for the coordination and resolution of conflicts in the future. The third chapter makes a comparative study on the judicial supervision of international commercial arbitration, including three aspects: one is the comparative study of the trend of judicial intervention in commercial arbitration, the other is the comparative study of two kinds of jurisdictional objections. The third is the comparative study of the conflict resolution approach-"coexistence control" system, which provides us with the train of thought and general direction to deal with the two conflicts well. In the fourth chapter, the author makes a tentative plan to construct the mechanism of resolving the conflicts between civil and commercial litigation jurisdiction and international commercial arbitration jurisdiction in China. Firstly, it clarifies the relevant issues from the legislative level. Secondly, it combs the experience that has been operated in practice at home and abroad. Finally, through the perfection of relevant rules and systems, it promotes the connection of the mechanism between the court and the arbitration institution. Finally, the dynamic coordination from legislation to practice and the establishment of conflict resolution mechanism are promoted.
【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;D925.1
[Abstract]:With the strengthening of international economic exchanges and the development of international trade, international civil and commercial disputes also increase. As two main ways to settle disputes, civil and commercial litigation involving foreign affairs and international commercial arbitration are often in conflict. In practice, how to sort out the relationship between the two, to avoid and eliminate the legal conflicts between the two, It is not only the theoretical circles that should explore and study, but also the practical circles of various countries to work hard, both theoretical and practical value. The first chapter of this paper begins with jurisdiction in civil action, analyzes the importance of jurisdiction and the legal benefits involved in it, and expounds the concept of jurisdiction in private international law, and analyzes the transfer of jurisdiction concept in commercial arbitration. Then it analyzes the basis of jurisdiction of civil and commercial litigation concerning foreign affairs and the principles of resolving conflicts, and finally expounds in detail the three essential elements of jurisdiction of international commercial arbitration. The second chapter makes a deep analysis of the relationship between the two kinds of jurisdiction, first of all, finds out the connection between the two, and then analyzes the differences between the two, including different theoretical basis, different holders of power, different principles of determination, different frequency of conflict. And different aspects of legal effect; Secondly, it discusses the expansion trend of arbitration jurisdiction, and then explains the court's judicial support and supervision of arbitration jurisdiction. Finally, this paper discusses the root causes of the two conflicts of jurisdiction, and lists the manifestations of the conflicts in the form of real cases in order to prepare for the coordination and resolution of conflicts in the future. The third chapter makes a comparative study on the judicial supervision of international commercial arbitration, including three aspects: one is the comparative study of the trend of judicial intervention in commercial arbitration, the other is the comparative study of two kinds of jurisdictional objections. The third is the comparative study of the conflict resolution approach-"coexistence control" system, which provides us with the train of thought and general direction to deal with the two conflicts well. In the fourth chapter, the author makes a tentative plan to construct the mechanism of resolving the conflicts between civil and commercial litigation jurisdiction and international commercial arbitration jurisdiction in China. Firstly, it clarifies the relevant issues from the legislative level. Secondly, it combs the experience that has been operated in practice at home and abroad. Finally, through the perfection of relevant rules and systems, it promotes the connection of the mechanism between the court and the arbitration institution. Finally, the dynamic coordination from legislation to practice and the establishment of conflict resolution mechanism are promoted.
【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;D925.1
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