先予仲裁的效力研究

A Study of the Validity of Pre-arbitration

先予仲裁是近两年湛江仲裁委推出的"创新产品",其申请执行案件大量涌入法院,实践中司法适用尺度不一。通过与一般仲裁比较以对其进行界定,分析先予仲裁中当事人的程序保障情况,结合针对该问题的司法实践操作对新出台的最高法批复进行解读。先予仲裁于争议发生之前作出,其本质并非仲裁,其效力不应被认可。

Pre-arbitration is an innovative product launched by Zhanjiang Arbitration Commission over the past two years. On one hand a large number of cases applying for execution were presented to the courts, but in practice, the criteria of judicial application is varied. To compare with the general arbitration for definition, the procedural protection of the parties in this kind of arbitration is analyzed and the relevant judicial interpretations are explained. In fact, pre-arbitration is made prior to the dispute, therefore basically it is not an arbitration, so its effectiveness is not to be recognized.