贸仲委上海、华南两分会与贸仲委之争的法律问题研究(一)——贸仲委上海、华南两分会不是独立的仲裁委员会

Research on the Legal Issues of the Disputes Between CIETAC Shanghai and Huanan Two Sub-commissions and CIETAC(1)——CIETAC Shanghai and Huanan Two Sub-commissions are Not Independent Arbitration Commissions

贸仲委上海分会、华南分会是1988年经国务院批准由中国贸促会成立的贸仲委的分会,不是地方政府批准成立的独立的涉外仲裁委员会;与《仲裁法》第10条规定国内新设仲裁委员会必须进行司法登记不同,《仲裁法》第七章确认并规定了中国贸促会设立涉外仲裁委员会和制定涉外仲裁规则的职权,但并未规定已设立近半个世纪的中国涉外仲裁委员会需要进行新设立司法登记,据此,两分会所进行的司法登记应予撤销或由登记部门撤回;两分会违法宣称为独立涉外仲裁委员会的行为因违法自始起无效,不得再受理贸仲委上海分会、华南分会仲裁条款案件,而应由贸仲委秘书局受理以维护当事人仲裁权利的正当行使。

CIETAC Shanghai and Hunan Sub-commission were established by CCPIT under the examination and approval of the State Council in 1988. They are not the independent arbitration commissions approved by the local government. It is quite different from that the new established do- mestic arbitration commissions shall be registered in accordance with Article 10 of the PRC Arbitra- tion Law, while the foreign-related arbitration commissions which had been established for almost half century shall not be registered as a new since the seventh chapter of the Arbitration Law has only confirmed and provided that the CCPIT shall have the right to set up foreign related arbitration com- missions and make its rules without providing that the foreign related arbitration commissions which had already been established long shall also be registered as a new one. Accordingly, the legal reg- istry had by the two CIETAC sub-commissions shall be set aside or withdrawn by the registry depart- ments. The act declared by the CIETAC two sub-commissions as independent arbitration commis- sions is of no effect from the very beginning because of breach of law. The two sub-commissions shall not accept arbitration shall be accepted by cised legitimately. cases in accordance with the arbitration clauses respectively, and the cases CIETAC Secretariat in order to protect the parties＇ arbitration rights be exercised legitimately.