仲裁合意争议司法审查研究

An Empirical Study of Judicial Review of Issues of Arbitration Consent

以合意为前提的仲裁在我国内地应具有更为突出的应用价值,该价值的发挥很大程度上又取决于仲裁合意争议的司法审查质量。境内外司法审查仲裁合意争议主要针对是否存在对仲裁要约的接受、是否存在都同意仲裁协议必备内容、多种解决纠纷方式约定中是否存在仲裁合意、援引或并入表示是否构成仲裁合意等情形,有关举证义务则多贯彻"谁主张谁举证"的原则,证明仲裁合意的标准则有强弱或适中大的差异,不过,对仲裁合意尽量做出肯定性解释的友好仲裁态度在实践中较为普遍。我国的制定法在仲裁协议必备内容、援引或并入表示是否构成仲裁合意等方面的规范存在着较大的缺陷,加上司法审查实践中各级人民法院时常出现的对仲裁合意认定的不友好态度,很不利于我国内地成为有世界竞争力的仲裁地。我国应采用修订《仲裁法》相应规定和改善人民法院司法态度的双重举措来改变此种局面。

Voluntary arbitration should have played a more positive role in most regions of China's Mainland with heavy litigation caseloads in local people＇s courts.Such arbitration must be relied upon consent of the parties.The quality of legislation for disputes of arbitral consent and its application by judicial review is very important to improve arbitration.Oversea judicial review of disputes of arbitral consent mainly relies upon common contract law and involves the issues about whether there is an acceptance to the offer for arbitration,the parties have signed an arbitration agreement with minimum content,there exists arbitral intention in multiple modes of dispute settlement agreed by the parties,and so on.The burden of proof in oversea jurisdiction is substantially assumed by the party who makes claims.The standards for establishing arbitral consent vary with jurisdiction,as well as time.Much oversea jurisdiction,however,adopts a friendly position towards arbitration to solve relative issues.In the judicial review practice,the people＇s courts at all levels have tended to determine the establishment of arbitral consent in some cases,showing their supportive position towards arbitration.In addition,the Supreme People＇s Court also assists arbitration in the manner that,once a lower people＇s court finds that foreign-related arbitration agreement is invalid,it will require the latter to report to high people＇s courts.However,such a request for reporting is only applied against foreign-related cases,and its own procedure is very prolonged and inefficient.At the same time,in other cases including the nature of foreign-related affairs,there is a very unfriendly attitude towards the determination of arbitral consent,which is mainly manifested in the lack of agreement on arbitration agreement with the selection of two or more arbitration institutions.Such a harsh attitude of judicial review is not conducive to China＇s growth into a worldcompetitive place of arbitration.As one of the world＇s arbitration centers,it can bring a lot of benefits such as good reputation,foreign exchange income and a reduction in litigation rate in our country.Our country should adopt the dual measures of amending the corresponding defects of the Arbitration Law and improving the judicial attitude of the people＇s courts to achieve this goal,that is to abolish the legislative provisions of the prohibition of ad hoc arbitration,to allow to appeal to the higher-level people＇s courts for negative decisions on the issues of arbitral consent.At the same time,the people＇s courts in the judicial review of any case stop applying internal reporting procedures when they announce arbitral consent and so on.