Along with the increasing use of multi-party arbitration, mounting issues relating to it have recently become heated topics. One of the various facets concerning the availability of class arbitration has gathered over...Along with the increasing use of multi-party arbitration, mounting issues relating to it have recently become heated topics. One of the various facets concerning the availability of class arbitration has gathered overwhelming discussion in the US. According to the decisions of the United States Supreme Court, whether class action is applicable is probably decided by the arbitrator＇s interpretation of the parties＇ intent when an adequately drafted arbitration clause is silent on this issue, regardless of the correctness of his/her construing of the contracts. The contract interpretation theory is a conclusion of existing jurisprudence while the question of arbitrability doctrine may be a hint or inkling from a recent court decision. Comparing these two sides, it is better to regard the availability of class arbitration for silent agreements as a matter of contract interpretation. Although it is preferable to regard the availability issue of class action as a contract interpretation question, some restrictions on the arbitrators＇ broad contract interpretation needs to be imposed so that the parties＇ real intent can be properly enforced.展开更多
This paper explores the law in China determining the validity of ad hoc arbitration agreements.It first points out the particularity of China's attitude toward ad hoc arbitration through a textual analysis of key ...This paper explores the law in China determining the validity of ad hoc arbitration agreements.It first points out the particularity of China's attitude toward ad hoc arbitration through a textual analysis of key provisions in Chinese laws and the comparison between Chinese law and the law of other jurisdictions.The authors then adopt an empirical approach to analyze Chinese courts' practice in the application of Chinese arbitration laws and conclude that,despite the clear wording employed by the Chinese Arbitration Law,Chinese courts could use two ways to save the ad hoc arbitration agreements without disobeying the statutory law.The paper then moves to analyze the Opinion of Supreme People's Court on Providing Judicial Guarantee for the Construction of Free Trade Pilot Zone (hereinafter referred to as "SPC Opinion") issued in December 2016,which is viewed as a tipping point toward a supporting regime of ad hoc arbitration.By implementing this SPC Opinion,for the first time,China regionally embraces ad hoc arbitration.On the basis of the analysis of this new development,the authors suggest possible facilitations to the SPC Opinion and predict the future reform of ad hoc arbitration.展开更多
文摘Along with the increasing use of multi-party arbitration, mounting issues relating to it have recently become heated topics. One of the various facets concerning the availability of class arbitration has gathered overwhelming discussion in the US. According to the decisions of the United States Supreme Court, whether class action is applicable is probably decided by the arbitrator＇s interpretation of the parties＇ intent when an adequately drafted arbitration clause is silent on this issue, regardless of the correctness of his/her construing of the contracts. The contract interpretation theory is a conclusion of existing jurisprudence while the question of arbitrability doctrine may be a hint or inkling from a recent court decision. Comparing these two sides, it is better to regard the availability of class arbitration for silent agreements as a matter of contract interpretation. Although it is preferable to regard the availability issue of class action as a contract interpretation question, some restrictions on the arbitrators＇ broad contract interpretation needs to be imposed so that the parties＇ real intent can be properly enforced.
文摘This paper explores the law in China determining the validity of ad hoc arbitration agreements.It first points out the particularity of China's attitude toward ad hoc arbitration through a textual analysis of key provisions in Chinese laws and the comparison between Chinese law and the law of other jurisdictions.The authors then adopt an empirical approach to analyze Chinese courts' practice in the application of Chinese arbitration laws and conclude that,despite the clear wording employed by the Chinese Arbitration Law,Chinese courts could use two ways to save the ad hoc arbitration agreements without disobeying the statutory law.The paper then moves to analyze the Opinion of Supreme People's Court on Providing Judicial Guarantee for the Construction of Free Trade Pilot Zone (hereinafter referred to as "SPC Opinion") issued in December 2016,which is viewed as a tipping point toward a supporting regime of ad hoc arbitration.By implementing this SPC Opinion,for the first time,China regionally embraces ad hoc arbitration.On the basis of the analysis of this new development,the authors suggest possible facilitations to the SPC Opinion and predict the future reform of ad hoc arbitration.
