First, the origin of the problem
Online arbitration is essentially the network operation state of arbitration. Because it is not divorced from the fundamental connotation of arbitration, it still meets the basic requirements of arbitration in all elements.
The so-called Online Arbitration originated in the United States, and English is online arbitration, which mainly refers to the use of modern internet to complete all the main links in traditional arbitration. That is, from the starting point of arbitration, the conclusion of arbitration agreement relies on the Internet, which clearly stipulates that both parties agree to conduct arbitration online in case of dispute. Once a commercial transaction dispute occurs, both parties to the dispute will submit an electronic arbitration application to the designated online arbitration institution according to the arbitration agreement, and the arbitration institution will complete the case acceptance and trial online and make a final arbitration award. This convenient and fast arbitration method has been widely recognized, because the parties and arbitrators can complete all arbitration links through virtual network without facing each other directly, which saves a lot of economic and time costs. Moreover, the arbitrators are either jointly recognized and selected by both parties or randomly selected from the network database, which greatly reduces the arbitrariness of arbitrators and enables them to make fair decisions.
Online arbitration is the networking of traditional arbitration methods, and it does not deviate from the legal requirements of the Arbitration Law of People's Republic of China (PRC) (hereinafter referred to as the Arbitration Law) in essence. However, the application of online arbitration in commercial transactions in China has not yet reached a universal state, which is caused by technical factors.
Secondly, the problems existing in the application of China's Arbitration Law to online arbitration.
From the concept of online arbitration, we can see that online arbitration can solve disputes quickly and economically, especially it can provide great convenience for the parties and adapt to the requirements of the network environment. However, from the aspects and procedures of online arbitration, there are technical problems in the application of arbitration law to varying degrees.
(a) the written release of the online arbitration agreement
According to the Arbitration Law, "the arbitration agreement includes the arbitration clause concluded in the contract and the request reached in other written forms before or after the dispute occurs". According to the Arbitration Law, the arbitration agreement must be established in written form, and there is a paradox between the written issue here and the online arbitration agreement. The submitted online arbitration application also involves the inconsistency with paper writing.
After the online trial, the arbitration tribunal makes an award according to the opinions of the majority of arbitrators. The award must be accompanied by the electronic signature of the arbitrator, sent to both parties by encrypted mail, and stored in the special website of the case and kept in the electronic file database of the arbitration institution. Unless one party objects, the award shall be made public and both parties shall be required to abide by it. However, according to the provisions of the Arbitration Law, the arbitration award should be in written form, which is also the main basis for the parties to the dispute to conduct litigation.
Therefore, the main contradiction between the arbitration law and online arbitration lies in whether the electronic agreement in non-written form is valid. This problem directly affects the legitimacy of online arbitration basis. If this problem is not solved, China's arbitration law can't really be applied to online arbitration.
(B) the legitimacy of online arbitration institutions
According to the provisions of the Arbitration Law, arbitration committees are generally not established step by step according to administrative divisions, but after all, there are permanent entities in their place. However, online arbitration makes the arbitration institution virtual, which leads to conflict with the issue of the arbitration institution's "own name, domicile and articles of association" stipulated in the Arbitration Law, thus causing a series of problems. In addition, although according to the arbitration law, arbitration institutions are not set up step by step according to administrative divisions, after all, there are regional differences in arbitration. However, online arbitration is based on the virtuality of the network and has no geographical restrictions. In the process of accepting cases, only the categories of cases are distinguished, and there is no geographical restriction. Whether the acceptance and arbitration results of such cases are valid is debatable.
(3) Qualifications of arbitrators of online arbitration institutions
China's Arbitration Law stipulates that "the Arbitration Commission shall appoint arbitrators from fair and upright personnel", which requires arbitrators to have profound legal knowledge and legal-related trade experience. Generally, those who meet this requirement are relatively older. Such arbitrators really play a vital role in traditional arbitration, but as a new arbitration method, online arbitration will encounter many problems, such as computer and network technology problems, which will test the knowledge reserve and technical ability of former arbitrators.
(four) the legal effect of electronic evidence in online trial and cross-examination.
In the process of online hearing, the arbitration tribunal may decide to conduct online hearing, and adopt multimedia technology to conduct the hearing through online telephone conference or audio-video system. Online trial requires all parties involved to have corresponding technical equipment. China's Arbitration Law stipulates that "the parties shall provide evidence for their own claims". Because both parties to the dispute submit evidence online, some traditional physical evidence must be converted into digital form: for example, traditional documentary evidence and physical evidence should be converted into audio or video, and whether the audio and video materials provided by themselves can have legal effect. In addition, the Arbitration Law stipulates: "If the arbitration tribunal thinks that it is necessary to appraise specialized issues, it may submit them to the appraisal department agreed by the parties or the appraisal department designated by the arbitration tribunal for appraisal." Whether the identification of intangible objects is consistent with the traditional identification, and if so, whether it conflicts with the traditional legal provisions.
Thirdly, the legal solutions to the problems existing in online arbitration in China.
(1) clearly recognizes the legal effect of electronic documents and electronic signatures in the arbitration law.
Giving unwritten electronic agreements the same legal effect as written documents is the most basic way to solve the main and basic contradiction between arbitration law and online arbitration. People's Republic of China (PRC) Electronic Signature Law, implemented in 2005, gives legal effect to data messages and electronic signatures. The "other written forms" identified in the Supreme People's Court's Interpretation on Several Issues of Application include data messages (including telegrams, telexes, faxes, electronic data interchange and e-mails), which basically solves this problem. However, with the continuous development and progress of society, the written problem of online arbitration agreement will encounter new ways such as data message. Therefore, the arbitration law should confirm that the signature generated by the new electronic method has the same legal effect as the document, and fundamentally solve the problem that the written document and the electronic document have the same legal effect.
(2) Give online arbitration institutions the same legal status as traditional arbitration institutions.
Although there is no entity in the network arbitration organization, there is no difference in the organization setting and personnel composition. Therefore, in order to promote online arbitration as a new arbitration method, the relevant provisions on arbitration institutions in the Arbitration Law should be revised, and the explanation that the domicile of arbitration institutions "has its own name, domicile and articles of association" should be expanded. As long as it does not violate the provisions and basic purposes of the arbitration institution, the virtual arbitration tribunal and the substantive arbitration tribunal will have the same legal status. The virtual arbitration tribunal and the substantive arbitration tribunal have the same legal effect on the arbitration result of the case.
(three) put forward the corresponding qualification standards for arbitrators of online arbitration institutions.
Arbitrators in online arbitration should not only have the profound legal basic skills of traditional arbitrators and the experience requirements of engaging in legal work and related trade work, but also increase the assessment requirements for arbitrators' network and computer abilities and levels, such as computer ability level test, network operation level test and various level tests involving trading technology in e-commerce transactions under the new situation. It can make online arbitrators adapt to online arbitration, a new arbitration method, and use professional knowledge and computer and network skills to solve technical problems encountered in various arbitration cases in practice.
(4) Revise the relevant provisions of electronic evidence.
To solve the legal effect of electronic evidence in online arbitration trial and cross-examination, it is necessary to amend the arbitration law and cooperate with relevant laws and regulations. According to the Electronic Signature Law and related regulations, electronic evidence is given corresponding legal status, but it is not clear in the Arbitration Law. In order to strengthen the legal effect of electronic evidence to meet the needs of the development of online arbitration, the arbitration law must be amended to give legal status to electronic audio-visual evidence transformed from traditional physical methods.
In addition, the traditional arbitration adopts the principle of "one award is final", which is mainly based on the economic cost and time cost of the parties and the arbitration tribunal. Once the award is made and takes effect, if both parties to the dispute file an arbitration on the same dispute, it will not be accepted. Because of the low cost of online arbitration, both parties to the dispute tend to choose online arbitration, and once the restrictions on the establishment of arbitration institutions are reduced, it will inevitably lead to a large number of arbitration institutions, so the final award will be improved. Both parties to the dispute can choose different arbitrators of an online arbitration institution to arbitrate the same case, or they can choose different arbitration institutions to arbitrate the same case, and get satisfactory arbitration results for both parties.
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