我国海事仲裁发展研究
发布时间：2018-12-08 15:56
【摘要】： 目前国际主要海事仲裁地的发展概况表明,伦敦作为世界公认的国际海事仲裁中心,其垄断地位依旧保持不变,甚至有加强的趋势。拥有先进的海商法及海事仲裁制度、英国法院对海事仲裁的支持、国际航运组织及保赔协会对伦敦仲裁的推动,是伦敦海事仲裁发展的主要原因。 以中国海事仲裁委员会为代表的我国海事仲裁发展现状,与伦敦相比差距甚远。海事仲裁是国际航运中心的重要要素,也是维护中方当事人合法权益的紧迫需要,我国发展海事仲裁有其必要性。 针对我国海事仲裁的缓慢发展,从海事仲裁自身因素及外部环境两个角度加以分析其深层次原因。关于航运当事人关心的仲裁收费问题,通过历史纵向比较和与诉讼收费横向比较,澄清仲裁收费的性质及分配,并提出收费方式的改革建议。关于海事仲裁裁决的终局性问题,鉴于航运当事人的不同需求,设计以当事人意思自治为基础的司法监督模式。关于仲裁协议的内容要件和形式要件问题,指出立法存在的缺陷,违背了国际仲裁立法趋势,脱离了航运惯例和实务操作,严重束缚了我国海事仲裁的发展。关于司法与仲裁的关系问题,分析司法解释的转变以及真实的司法判例,反映出司法实践对海事仲裁的严厉态度,为海事仲裁发展营造了不利的司法环境。 继而提出我国发展海事仲裁的具体措施建议,并认为我国不承认临时仲裁目前不是制约发展的瓶颈。在机构改革方面,应当扩大中国海事仲裁委员会的机构设置,增加人财物投入,改变传统的管理模式,做好发展规划。在立法方面,应当关注海事仲裁的特殊性：修改仲裁法对仲裁协议内容要素的规定,使“北京仲裁”、“上海仲裁”成为有效仲裁条款；对于提单仲裁条款,应当由仲裁法明确承认其有效性,同时可以通过海商法强制适用来否定提单中约定到国外仲裁或诉讼的条款效力。在司法方面,应当树立支持海事仲裁理念,对海事仲裁适度监督,主要原因在于尊重当事人的意思自治、平衡仲裁追求的价值目标、增强国际海事仲裁市场竞争力以及减轻法院负担、合理配置司法资源。最后,政府主管部门、行业协会组织及海事律师应当大力推动海事仲裁,规范各类航运合同,推广我国的海事仲裁条款,这是我国发展海事仲裁最直接最有效的办法。
[Abstract]:At present, the development of the main international maritime arbitration places shows that London, as the world recognized international maritime arbitration center, its monopoly status remains unchanged, and even has a trend of strengthening. The main reasons for the development of London maritime arbitration are the advanced maritime law and maritime arbitration system, the support of British courts for maritime arbitration, and the promotion of London arbitration by the International Maritime Organization and the Association for the Protection of claims. The development of maritime arbitration in China, represented by China Maritime Arbitration Commission, is far from London. Maritime arbitration is an important element of the international shipping center and an urgent need to safeguard the legitimate rights and interests of the Chinese parties. It is necessary for China to develop maritime arbitration. In view of the slow development of maritime arbitration in China, this paper analyzes the deep reasons of maritime arbitration from the aspects of its own factors and external environment. On the issue of arbitration fees concerned by shipping parties, this paper clarifies the nature and distribution of arbitration fees through historical vertical comparison and horizontal comparison with litigation fees, and puts forward some suggestions for the reform of charging methods. With regard to the final nature of maritime arbitration award, in view of the different needs of shipping parties, a judicial supervision model based on party autonomy is designed. With regard to the content and form elements of the arbitration agreement, this paper points out the defects of the legislation, which violates the legislative trend of international arbitration, breaks away from the shipping practice and practical operation, and seriously restrains the development of maritime arbitration in China. With regard to the relationship between judicature and arbitration, this paper analyzes the transformation of judicial interpretation and the real judicial case, which reflects the stern attitude of judicial practice towards maritime arbitration, and creates an unfavorable judicial environment for the development of maritime arbitration. Then it puts forward some concrete measures to develop maritime arbitration in our country, and thinks that China does not recognize temporary arbitration as the bottleneck restricting the development at present. In the aspect of institutional reform, we should expand the institutional setting of China Maritime Arbitration Commission, increase the investment of people and property, change the traditional management mode and make a good development plan. In the aspect of legislation, we should pay attention to the particularity of maritime arbitration: modifying the provisions of arbitration law on the elements of arbitration agreement so that "Beijing arbitration" and "Shanghai arbitration" become effective arbitration clauses; For the arbitration clause of bill of lading, the validity of the arbitration law should be explicitly recognized by the arbitration law, and the validity of the clause stipulated in the bill of lading may be denied through the compulsory application of maritime law in the bill of lading. In the judicial aspect, we should establish the concept of supporting maritime arbitration and supervise maritime arbitration moderately. The main reason lies in respecting the autonomy of the parties' will and balancing the value goal pursued by arbitration. Enhance the competitiveness of the international maritime arbitration market, lighten the burden on the courts, and rationally allocate judicial resources. Finally, government authorities, trade association organizations and maritime lawyers should vigorously promote maritime arbitration, standardize all kinds of shipping contracts and popularize maritime arbitration clauses in China, which is the most direct and effective way to develop maritime arbitration in China.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D925.7
本文编号：2368608
[Abstract]:At present, the development of the main international maritime arbitration places shows that London, as the world recognized international maritime arbitration center, its monopoly status remains unchanged, and even has a trend of strengthening. The main reasons for the development of London maritime arbitration are the advanced maritime law and maritime arbitration system, the support of British courts for maritime arbitration, and the promotion of London arbitration by the International Maritime Organization and the Association for the Protection of claims. The development of maritime arbitration in China, represented by China Maritime Arbitration Commission, is far from London. Maritime arbitration is an important element of the international shipping center and an urgent need to safeguard the legitimate rights and interests of the Chinese parties. It is necessary for China to develop maritime arbitration. In view of the slow development of maritime arbitration in China, this paper analyzes the deep reasons of maritime arbitration from the aspects of its own factors and external environment. On the issue of arbitration fees concerned by shipping parties, this paper clarifies the nature and distribution of arbitration fees through historical vertical comparison and horizontal comparison with litigation fees, and puts forward some suggestions for the reform of charging methods. With regard to the final nature of maritime arbitration award, in view of the different needs of shipping parties, a judicial supervision model based on party autonomy is designed. With regard to the content and form elements of the arbitration agreement, this paper points out the defects of the legislation, which violates the legislative trend of international arbitration, breaks away from the shipping practice and practical operation, and seriously restrains the development of maritime arbitration in China. With regard to the relationship between judicature and arbitration, this paper analyzes the transformation of judicial interpretation and the real judicial case, which reflects the stern attitude of judicial practice towards maritime arbitration, and creates an unfavorable judicial environment for the development of maritime arbitration. Then it puts forward some concrete measures to develop maritime arbitration in our country, and thinks that China does not recognize temporary arbitration as the bottleneck restricting the development at present. In the aspect of institutional reform, we should expand the institutional setting of China Maritime Arbitration Commission, increase the investment of people and property, change the traditional management mode and make a good development plan. In the aspect of legislation, we should pay attention to the particularity of maritime arbitration: modifying the provisions of arbitration law on the elements of arbitration agreement so that "Beijing arbitration" and "Shanghai arbitration" become effective arbitration clauses; For the arbitration clause of bill of lading, the validity of the arbitration law should be explicitly recognized by the arbitration law, and the validity of the clause stipulated in the bill of lading may be denied through the compulsory application of maritime law in the bill of lading. In the judicial aspect, we should establish the concept of supporting maritime arbitration and supervise maritime arbitration moderately. The main reason lies in respecting the autonomy of the parties' will and balancing the value goal pursued by arbitration. Enhance the competitiveness of the international maritime arbitration market, lighten the burden on the courts, and rationally allocate judicial resources. Finally, government authorities, trade association organizations and maritime lawyers should vigorously promote maritime arbitration, standardize all kinds of shipping contracts and popularize maritime arbitration clauses in China, which is the most direct and effective way to develop maritime arbitration in China.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D925.7
【引证文献】
相关硕士学位论文 前1条
1 郑雨霆;海事仲裁法律制度研究[D];华东政法大学;2013年
，本文编号：2368608
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