论无权仲裁的司法救济

Judicial Remedy of Unauthorized Arbitration

无权仲裁在谱系类型上应当包括因管辖机构和裁决事项两类原因而导致的四种情形,我国现行立法仅对其中三种无权仲裁之情形提供司法救济,对非属当事人约定的仲裁机构擅管双方争议之无权仲裁情形,则处于无可救济的司法困境。此种无权仲裁情形于逻辑上固能成立,但于实践而言则实属反常和罕见。贸仲委内部机构的非合意裂变所引起的系列仲裁案例将此种逻辑可能(其中潜伏着无权仲裁之危机)造就成了现实。鉴于其根本否定仲裁自治的基本法则,扰乱了仲裁机构彼此之间的管辖秩序,故应在规则层面补全其救济依据,并通过在仲裁管辖、裁决执行和域外裁决的承认与执行三阶段的制度安排,建构起针对此种无权仲裁及其裁决的综合救济体制。

Unauthorized arbitration should include four circumstances caused by matters in pedigree typology. Our existing legislative framework provides judicial jurisdiction institution and award remedy for just three of them. The circumstance that a arbitral institution exercise a jurisdiction over the dispute of the parties unauthorized which not based on the parties agreement is in a judicial dilemma that has no remedy measures. This circumstance founded in logic, however, anomalous and rare in arbitration practice. A series of arbitration cases caused by non-consensual fission in CIETAC internal organizations make this logical possibility （which has a potential crisis of unauthorized arbitration） a reality. As it not only denies the basic principle of arbitration autonomy thoroughly, but also disrupts the jurisdiction order between arbitral institutions, we should complete it＇s remedy basis in the rules level and construct a comprehensive remedy system against unauthorized arbitration as well as it＇s awards through institutional arrangements in three stages： arbitration jurisdiction, award execution, recognition and enforcement of abroad arbitration awards.