浅析撤销仲裁裁决司法审查的实质要点及实践启示——基于西南某仲裁委员会100个随机案例的实证研究

The Empirical Research of Substantive Points and Practical Implications of Judicial Review on Cancellation of Arbitration Awards——Based on 100 Random Cases of an Arbitration Commission in Southwest China

以C仲裁委员会为研究对象,通过对随机抽取的100份驳回撤销仲裁裁决申请的裁定书进行实证研究表明:当事人申请撤销的理由类目繁多,但针对性不足;法院驳回撤销的理由集中,且对《中华人民共和国仲裁法》(以下简称"《仲裁法》")第58条之外的事项不予审查;当事人实体思维较重,但司法审查要求当事人承担举证责任;法院针对《仲裁法》第58条事项规定的具体事项有不同的审查重点。以司法支持仲裁为宗旨,建议法院以绝对不审查实体为原则,以部分审查实体为例外,并对程序性事由采取有利于仲裁庭的审查标准;以规避职业风险为目的,建议仲裁员适时提醒当事人行权,主动披露和报告潜在的利益冲突,并尽量释明不涉及裁决的事项;以司法审查的实质要点为逻辑依归,建议当事人在仲裁程序中及时提出异议,在申请撤裁程序中应当有的放矢,并承担初步举证责任。

Taking C Arbitration Commission as the research object,the empirical research on 100 written verdicts of dismissal of the appeal for cancellation of the arbitration award based on random selection was conducted in this paper.The research results showed that there were many reasons for the parties concerned to apply for cancellation of the arbitration award without strong pertinence.In most cases,the court dismissed the appeals on the same grounds and did not carry out the review of legal matters that was not stipulated in Article 58 of the Arbitration Law of the People’s Republic of China(hereinafter referred to as the Arbitration Law).The parties concerned tended to have consideration for entity issues,but it was required that the parties concerned should bear the burden of proof for judicial review.The court conducted the review of the legal matters stipulated in Article 58 of the Arbitration Law with different focuses.For the purpose of judicial support for arbitration,it is suggested that the court should adopt the review standard in favour of the arbitral tribunal for procedural matters based on the principle of no review of entities and exceptions of review of entities.For the purpose of avoiding occupational risks,it is suggested that the arbitrators should remind the parties concerned to exercise their rights in due time,taking the initiative to disclose and report potential conflicts of interest.Besides,arbitrators should try to explain the matters not involved in the arbitration.Taking the essence of judicial review as the logical basis,it is suggested that the parties concerned should raise objections in time in the arbitration procedure and bear the preliminary burden of proof in the appeal for cancellation of the arbitration award with a specific aim.