我国商事仲裁与商事调解衔接制度的法律问题探析

Analysis of Legal Issues of the Linkage System between Commercial Arbitration and Commercial Mediation in China

诉讼、仲裁和调解是解决国际商事争端的主要手段。诉讼和仲裁分别有《选择法院协议公约》和《纽约公约》作为各自跨国承认与执行的国际法依据。而随着“一带一路”倡议的提出和贯彻落实,以及《新加坡调解公约》的签署生效,调解在国际商事争端中的作用越来越受到重视。仲裁和调解作为非诉纠纷解决方式,二者具有诸多相似点但又存在差异。目前我国对商事仲裁和商事调解衔接制度的规定,主要体现在《仲裁法》第51条,《仲裁法(征求意见稿)》则进一步明确了调解协议的制作程序,但对仲裁员与调解员的身份是否可以混同、调解期限等问题并未提及。本文旨在分析我国商事仲裁和商事调解之间的关系,介绍商事仲裁与商事调解的衔接模式和实践,对我国商事仲裁与商事调解衔接制度中的法律问题进行分析和总结。

Litigation,arbitration and mediation are the main means of settling international commercial disputes.Litigation and arbitration have The Convention On Choice of Court Agreements Convention on and The Recognition and Enforcement of Foreign Arbitral Awards as the international law basis for their transnational recognition and enforcement.With the Belt and Road Initiative was proposed and implemented and the United Nations Convention on International Settlement Agreements resulting from Mediation signed,the role of mediation in international commercial disputes has become increasingly important.As alternative dispute resolution methods,arbitration and mediation have many similarities but also differences.Now China's provisions on the interface system between commercial arbitration and commercial mediation are mainly reflected in Article 51 of the Arbitration Law of the People's Republic of China,while Amendment to the Arbitration Law(Consultation Draft)further clarifies the procedures for the production of mediation agreements,but the issues of whether the identities of arbitrators and mediators can be mixed and the duration of mediation are not mentioned.The purpose of this article is to analyze the relationship between commercial arbitration and commercial mediation in China,introduce the linkage model and practice of commercial arbitration and commercial mediation,analyze and summarize the legal issues of the linkage system between commercial arbitration and commercial mediation in China.