论国际商事仲裁中“异议权放弃条款”的适用

On the Application of the Clause of "Waiver of Right to Object" in International Commercial Arbitration

目前许多仲裁规则中都设有"异议权放弃条款",其目的在于督促当事人迅速合理地行使其在仲裁程序中的权利。适用该条款的关键在于判断当事人的异议权放弃行为,对此应从四个方面考虑:仲裁中出现了与仲裁规则或当事人约定不相符的情况,当事人知悉这种情况的存在,当事人未在约定的或合理的期限内提出异议并且该异议权是可以放弃的。异议权放弃条款的适用需得到仲裁地和裁决执行地法律的支持,因此许多国家的仲裁法中也都设置了"异议权放弃条款",我国仲裁法也应在这一方面进行完善。

The clause of ＂waiver of right to object＂ （hereinafter referred to as ＂the Clause＂） has been established in many arbitration rules, it plays a role in urging the parties of arbitration to exercise their rights to object quickly and reasonably. The Clause is devised to regulate the waiving conduct of the parties of arbitration inregard of four aspects： the arbitral proceedings do not comply with due rules, the parties know or ought to have known the non-oompliance, the parties fail to object to such non-compliance in due time, the waiver of right to object is lawful. The application of the Clause shall be permitted by the law of place of arbitration and by that of the place where the recognition and enforcement of arbitral award is sought. As the Clause has been set down in a lot of arbitration laws, its entry into the Arbitration Law of P. R. C is worth considering.