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Issues of Arbitrability in International Commercial Arbitration：Possibility of Creation of Uniform Rules
international commercial arbitration,arbitrability,non-arbitrability,New York Convention,UNCITRAL Model Law,litigation,
|Publication Year :||2016|
This thesis addresses the issues of arbitrability. Arbitrability is not only a condition of the validity of arbitration agreements, but also constitutes the grounds for refusing recognition or enforcement, or setting aside the arbitral awards under the New York Convention and the UNCITRAL Model Law. Considering there is no consensus among countries on determining the question of arbitrability so far, neither the New York Convention nor the Model Law providing guidance, the purpose of this thesis is to find some possible approaches, to decrease the legal uncertainties and risks arising out of arbitrability.
In international trade and commerce, arbitration has nowadays become increasingly popular and widely accepted as a means of resolving disputes. Most countries have liberalized their attitude to arbitration. However, disputes involved exercise of government authority, public interests, mandatory rules, weak parties, or the third party, still be concerned or criticized as arbitrable in some region; on the other hand, limitations to arbitrability might derogate the principle of party autonomy, and conflicts to the trend of pro-arbitration policy which the New York Convention and UNCITRAL Model Law have recognized, that again appears the dilemma of whether some certain disputes should be arbitrable.
Traditionally, most discussion regarding to arbitrability divided into such substantive issues as securities, corporate, antitrust, patent disputes. By observing and analyzing those grounds usually taken as challenging the arbitrability, this thesis argues that, the nature of arbitrablility issues are in connection with the limitations of the arbitration procedure itself, that is, party autonomy, confidence, final and binding, ex aequo et bono principle, business consideration, etc. In other words, these principle and characteristics make arbitration unsuccessful to respond to the specific needs of some disputes, and triggering the controversies of arbitrability.
The thoughts of constructing uniform rules for arbitrability has once been mentioned in the United Nations International Trade Commission resolution, and recently be called by some scholars as well. To give consideration to both pro-arbitration policy and concerns above, this thesis attempts to propose a list of non-arbitrable disputes, and the grounds for non-arbitrability. In addition, the thesis argues that the arbitrability issues are not only about whether the dispute is arbitrable, but also how flexible the arbitration procedure can be. Thus, the thesis suggests to introduce some public hearing, third-party participation procedures in arbitration, to solve the problems, and at the same time decrease the negative impact of limiting arbitration.
The author suggests, making it clear of where is the line between arbitrable and non-arbitrable disputes, and constructing some uniform rules and amending arbitration procedures if need be, will benefit the development of arbitration in the long run.
|Appears in Collections:||科際整合法律學研究所|
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