争议事项的可仲裁性问题研究
发布时间：2019-03-31 01:00
【摘要】：虽然调整商事关系的准则与仲裁活动在古罗马法中已有体现,但当时商品交易在空间上与规模上的有限性,使得相关商业准则的影响力较为薄弱。中世纪时,来自不同城邦、不同港口进行商事交易的商人们,通过自行设立的行商法院解决争议,这样的行商法院开始具有现代仲裁或仲裁庭的性质。随着11世纪十字军东征,威尼斯成为大批军队与后勤保障的转运口,商品交易与货物运输的迅速发展促成了商人习惯法的萌芽与现代商事仲裁制度雏形的形成。自1697年英国议会正式承认仲裁制度、产生了第一个仲裁法案起,作为一项古老争议解决机制的仲裁呈现出显著的发展前景,从国内仲裁扩展到国际商事仲裁。 国际商事仲裁源远流长,其中蕴含的法理基础、实证规则与价值规范更是博大精深。历经上千年的发展,国际商事仲裁逐步形成了在世界范围内得以普遍接受的基本规则。因我国经济的发展与对外交往的不断加深,有关国际商事的争议也必然会越来越多,一直以来,商事仲裁是解决国际商事争议最常用的方法之一然而具有一定特性是适用国际商事仲裁的前提。仲裁机构或仲裁庭对当事人约定提交仲裁的争议并非都可以行使管辖权,实质上这是国家对仲裁范围施加的一种限制,这就涉及国际商事仲裁中争议事项的可仲裁性问题,争议的可仲裁性可以决定仲裁协议是否有效、管辖权的归属和仲裁裁决的承认和执行。因此,在国际商事仲裁中,争议事项的可仲裁性问题一直都有非常重要的影响。 论文主要是从争议事项可仲裁性的学理角度对其认定标准、性质以及如何界定争议事项的可仲裁性进行阐述。我国多数学者在商事仲裁的定性上有一个明确的界定,持公共政策这一学说即其普遍支持的观点,在国际仲裁方面,多数的专家和学者对商事仲裁所下的定义为“争议通过仲裁解决的界限是必须符合各国的公共政策和社会公共秩序,每一个国家都可以根据其各自的经济和社会政策,决定哪些争议可以通过仲裁的方式解决,哪些争议不能通过仲裁的方式解决”,在大陆法系国家主要在立法中加以界定,而在普通法系国家主要是在判例中加以界定。在论述可仲裁性的性质时,重点阐述了可仲裁性与公共政策和意思自治的关系在争议事项可仲裁性的认定时,与上述二者有着紧密的联系。 日益广泛的商事交往,相互间的联系愈发紧密,统一的国际商事仲裁模式是近年来的发展趋势,第一,以往不能仲裁的争议事项,现在也逐渐走入仲裁的视野;第二,商事主体的范围逐渐扩大,促使仲裁庭管辖范围的扩大。许多国家都开始将反垄断纠纷、证券争议、破产争议、知识产权争议纳入可仲裁的范围。论文最后以国际商事仲裁中争议事项的可仲裁性的发展趋势为立足点,分析探究我国现阶段的不足以及立法上的缺失,重点论述了反垄断纠纷的可仲裁性问题和证券争议的可仲裁性问题。
[Abstract]:Although the rules and the arbitration activities of the adjustment of the commercial relation have been embodied in the ancient Roman law, the commodity trading at that time is limited in space and in size, so that the influence of the relevant commercial norms is weak. In the Middle Ages, businessmen from different urban and different ports for commercial transactions settled the dispute through a self-established business court, which began to have the nature of modern arbitration or arbitral tribunals. With the crusade of the Crusades in the 11th century, Venice has become the transfer port of a large number of troops and logistics, and the rapid development of the commodity transaction and the transport of goods has led to the formation of the embryonic development of the merchant's customary law and the embryonic development of the modern commercial arbitration system. Since the British Parliament formally recognized the arbitration system in 1697, the first arbitration act was created, and the arbitration as an old dispute settlement mechanism showed a remarkable development prospect and extended from domestic arbitration to international commercial arbitration. The international commercial arbitration has a long history, including the legal basis, the positive rule and the value standard, and the great essence of the international commercial arbitration. With the development of the last millennium, international commercial arbitration has formed a universal acceptance of the basic rules in the world However, because of the development of our economy and the deepening of foreign exchanges, the disputes on international commercial law must be more and more, and the commercial arbitration has been one of the most commonly used methods to solve the problem of international commercial disputes. However, it has a certain characteristic that it is applicable to the application of the international commercial arbitration The arbitral body or the arbitral tribunal may not, in essence, exercise its jurisdiction over the dispute that the parties agree to submit to the arbitration, which is, in essence, a limitation of the State's application to the scope of the arbitration, which relates to the justiciability of the dispute in international commercial arbitration The arbitrability of the dispute may determine whether the arbitration agreement is valid, the ownership of the jurisdiction, and the recognition and holding of the arbitral award. Therefore, in the international commercial arbitration, the issue of the arbitrability of the matter of the dispute has always been very important In response, the thesis is mainly from the theory of the arbitrability of the matter of the dispute, the criteria and the nature of its determination, and how to define the arbitrability of the matter of the dispute. Most of the scholars in our country have a clear definition of the nature of commercial arbitration. The theory of public policy is its universal support. In the aspect of international arbitration, most of the experts and scholars have the definition of "The delay of input through the commercial arbitration". nk>, in the continental law system, is mainly defined in the legislation, while in common law countries are mainly in the case In this paper, when the nature of the arbitrability is discussed, it is emphasized that the relationship between the arbitrability and the public policy and the meaning self-government has a close relationship with the two of the above-mentioned two. In recent years, the international commercial arbitration model is the developing trend in recent years, and the first, the disputes that cannot be arbitrated in the past, are now gradually entering the field of view of the arbitration; and the second, the case of the commercial subject The expansion of the perimeter led to the jurisdiction of the arbitral tribunal The scope of the expansion. Many countries have begun to include antimonopoly disputes, securities disputes, bankruptcy disputes, and intellectual property disputes into the The thesis concludes with the developing trend of the arbitrability of the dispute in the international commercial arbitration, analyzes the shortcomings of the present stage and the absence of the legislation, and focuses on the arbitrability of the anti-monopoly dispute and the negotiable securities dispute.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D925.7
本文编号：2450675
[Abstract]:Although the rules and the arbitration activities of the adjustment of the commercial relation have been embodied in the ancient Roman law, the commodity trading at that time is limited in space and in size, so that the influence of the relevant commercial norms is weak. In the Middle Ages, businessmen from different urban and different ports for commercial transactions settled the dispute through a self-established business court, which began to have the nature of modern arbitration or arbitral tribunals. With the crusade of the Crusades in the 11th century, Venice has become the transfer port of a large number of troops and logistics, and the rapid development of the commodity transaction and the transport of goods has led to the formation of the embryonic development of the merchant's customary law and the embryonic development of the modern commercial arbitration system. Since the British Parliament formally recognized the arbitration system in 1697, the first arbitration act was created, and the arbitration as an old dispute settlement mechanism showed a remarkable development prospect and extended from domestic arbitration to international commercial arbitration. The international commercial arbitration has a long history, including the legal basis, the positive rule and the value standard, and the great essence of the international commercial arbitration. With the development of the last millennium, international commercial arbitration has formed a universal acceptance of the basic rules in the world However, because of the development of our economy and the deepening of foreign exchanges, the disputes on international commercial law must be more and more, and the commercial arbitration has been one of the most commonly used methods to solve the problem of international commercial disputes. However, it has a certain characteristic that it is applicable to the application of the international commercial arbitration The arbitral body or the arbitral tribunal may not, in essence, exercise its jurisdiction over the dispute that the parties agree to submit to the arbitration, which is, in essence, a limitation of the State's application to the scope of the arbitration, which relates to the justiciability of the dispute in international commercial arbitration The arbitrability of the dispute may determine whether the arbitration agreement is valid, the ownership of the jurisdiction, and the recognition and holding of the arbitral award. Therefore, in the international commercial arbitration, the issue of the arbitrability of the matter of the dispute has always been very important In response, the thesis is mainly from the theory of the arbitrability of the matter of the dispute, the criteria and the nature of its determination, and how to define the arbitrability of the matter of the dispute. Most of the scholars in our country have a clear definition of the nature of commercial arbitration. The theory of public policy is its universal support. In the aspect of international arbitration, most of the experts and scholars have the definition of "The delay of input through the commercial arbitration". nk>, in the continental law system, is mainly defined in the legislation, while in common law countries are mainly in the case In this paper, when the nature of the arbitrability is discussed, it is emphasized that the relationship between the arbitrability and the public policy and the meaning self-government has a close relationship with the two of the above-mentioned two. In recent years, the international commercial arbitration model is the developing trend in recent years, and the first, the disputes that cannot be arbitrated in the past, are now gradually entering the field of view of the arbitration; and the second, the case of the commercial subject The expansion of the perimeter led to the jurisdiction of the arbitral tribunal The scope of the expansion. Many countries have begun to include antimonopoly disputes, securities disputes, bankruptcy disputes, and intellectual property disputes into the The thesis concludes with the developing trend of the arbitrability of the dispute in the international commercial arbitration, analyzes the shortcomings of the present stage and the absence of the legislation, and focuses on the arbitrability of the anti-monopoly dispute and the negotiable securities dispute.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D925.7
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