商事仲裁庭组成程序的异化与修正——基于博弈论的分析

On the Misinterpretation and Correction of Procedure for Forming an Arbitral Tribunal: Based on Game Theory

当事人合意选择仲裁员组成仲裁庭,是商事仲裁的特色之一。在仲裁实践中,由于仲裁规则的设置有利于申请人,组庭程序从选择双方共同信任的仲裁员异化为排除己方不信任的仲裁员。笔者试图运用博弈论的方法,从孤立博弈和序贯博弈角度分析组庭程序中当事人的行为,在分析名单法、边裁选定首席仲裁员方法的基础上提出组庭程序的意见和建议。

A peculiarity of commercial arbitration is that arbitrators are appointed by mutual agreement. In practice, however, the appointment of arbitrators is suffering an undesirable shift from the initial intention of the rules. Instead of choosing arbitrators trustworthy for both, each party is actually excluding its own unwanted arbitrators. The author applies game theory to this paper and discusses both parties＇ behaviors during the appointment process from the perspective of isolate game and sequential game theory. List system and ＂sideline judge＂ approach are also analyzed, based on which the author offers his own suggestions on the procedure for forming an arbitral tribunal.