"Belt and Road" is the abbreviation of "Silk Road Economic Belt" and "265438+20th Century Maritime Silk Road". On March 28th, 20 15, the National Development and Reform Commission, the Ministry of Foreign Affairs and the Ministry of Commerce jointly issued "Vision and Action for Promoting the Joint Construction of the 2 1 Century Silk Road Economic Belt and Maritime Silk Road", marking that the "Belt and Road" has entered an all-round promotion stage. 2065438+On June 29th, 2005, the signing ceremony of the Asian Infrastructure Investment Bank Agreement marked that the "Belt and Road" strategy entered a new stage of development.

The new york Convention on the Recognition and Enforcement of Foreign Arbitral Awards (new york Convention for short) signed in 1958 makes it easier for arbitral awards to be recognized and enforced worldwide than court judgments. China acceded to the Convention on February 2nd 1986, and the Convention came into force on April 2nd 1987. At present, 150 countries or regions have joined the convention. Almost all countries along the Belt and Road have joined the new york Convention. Once civil and commercial disputes occur, the international commercial arbitration system will become the most important dispute settlement mechanism. Therefore, a sound international commercial arbitration system is an important judicial guarantee for implementing the "Belt and Road" strategy.

As an important part of the construction of a society ruled by law, "improving the diversified dispute resolution mechanism" was written into the decision of China Central Committee on comprehensively promoting the rule of law, which marked that the reform and improvement of the diversified dispute resolution mechanism officially rose to a national strategy. International commercial arbitration system, as an important dispute settlement method in diversified dispute settlement mechanism, needs to be reformed and improved urgently. International commercial arbitration mainly includes international economic and trade arbitration and international maritime arbitration, which some scholars call foreign-related commercial arbitration. As a highly internationalized legal system for dispute settlement, arbitration is the main way to solve commercial disputes in developed countries such as Europe and America, because it can better reflect the autonomy of the parties to the dispute. Its open rules and flexible dispute settlement mechanism make it an important platform and medium to integrate into the international rules system. International trade center cities around the world are basically international arbitration centers supported by internationally renowned arbitration institutions. Therefore, bringing China's international commercial arbitration system into line with international rules will help promote the "Belt and Road" strategy.

General situation of international commercial arbitration system in China

The total number of cases accepted by China International Economic and Trade Arbitration Commission increased from 73 1 in 2000 to 20 13/256. Although the total number of accepted cases increased rapidly, it only increased the number of accepted domestic disputes, while the number of foreign-related cases decreased from 543 in 2000 to 387 in 20 14. Although China has established an international commercial arbitration system and joined the new york Convention, there are still some conflicts between the arbitration legal system and international rules. It is an urgent problem to improve the international commercial arbitration system and enhance the credibility of arbitration.

Administrative arbitration institution. The vague legislative provisions on the legal status and social attributes of the arbitration commission are the key to the politicization of commercial arbitration institutions in China at present. Throughout the whole text of the Arbitration Law, the nature of arbitration institutions has not been clearly defined, and only Articles 8 and 14 concern the independence of arbitration and arbitration committees. Article 66 of the Special Provisions on Foreign-related Arbitration stipulates that the China International Chamber of Commerce may establish a foreign-related arbitration commission. It can be seen that although the Arbitration Law establishes the legal status of the Arbitration Commission as a non-administrative organ, there is still no clear stipulation on what kind of legal person organization it is, which leads to disputes over the nature of arbitration institutions in practice. In the relevant questionnaire survey in 2007, 48.8% of the surveyed arbitration institutions still consider themselves as administrative or administrative auxiliary institutions. This shows that the independence of arbitration institutions has not been realized. Although the questionnaire did not separately investigate the international commercial arbitration institution, it can be considered that the international commercial arbitration institution is administrative in nature because the arbitration law does not clearly stipulate the nature of the international commercial arbitration institution.

The ad hoc arbitration system does not exist. According to whether there is a permanent specialized arbitration institution, commercial arbitration can be divided into institutional arbitration and ad hoc arbitration. Ad hoc arbitration is different from institutional arbitration in order to solve specific disputes, and both parties to the dispute agree to temporarily form an arbitration tribunal for arbitration. Compared with institutional arbitration, ad hoc arbitration has a longer history and is the origin of modern commercial arbitration system. Although there are more organized institutional arbitrations on the basis of ad hoc arbitration, ad hoc arbitration still has its own advantages and necessity. In international commercial disputes, especially maritime disputes, most maritime arbitration cases are solved by temporary arbitration, and its effectiveness has been widely recognized by all countries in the world. Looking around the world, almost all international arbitration institutions or countries with highly developed commercial systems have stipulated temporary arbitration systems. The arbitration rules of ad hoc arbitration can be designed by the parties themselves, or the existing arbitration rules can be selected by the parties through agreement. The arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL) are widely used in ad hoc arbitration. They provide systematic and strict rules for the procedural matters of arbitration, which can eliminate the uncertainty in the arbitration process and give full play to the advantages of temporary arbitration. This set of rules can not only be applied to temporary arbitration, but even some permanent arbitration institutions allow the parties to choose. Because the arbitrator appointed by the parties in the ad hoc arbitration is often an authoritative legal expert in the disputed field, to a certain extent, the arbitration result is objective and fair, which is easily accepted by both parties to the dispute. It can be seen that having optional temporary arbitration procedures and professional arbitrators can not only fully guarantee the autonomy of the parties to temporary arbitration, but also ensure the predictability and stability of the arbitration process and award results.

Reflection on China's ad hoc arbitration system should be grasped from two aspects: international rules. According to the new york Convention, the word "award" in the Convention refers to the award made by institutional arbitration and ad hoc arbitration. China, as a signatory to the new york Convention, only made a declaration of reciprocal reservation and commercial reservation upon accession, thus recognizing the interim arbitration system in the Convention.

At the level of domestic rules, China's current arbitration law does not recognize the temporary arbitration system. Articles 16 and 18 of the Arbitration Law stipulate that the arbitration agreement shall stipulate the arbitration commission, otherwise the arbitration agreement shall be invalid. It is true that ad hoc arbitration is composed of an arbitration tribunal, and the arbitration commission cannot be stipulated in the arbitration agreement, so our domestic law holds a negative attitude towards ad hoc arbitration. Therefore, when the international commercial arbitration award is recognized and enforced, the arbitration made abroad is not equal to the arbitration made in China. Foreign interim arbitral awards can be recognized and enforced in China according to the new york Convention, but arbitral awards made in China are invalid because they violate the laws of the place where the arbitral award is made. This embarrassing situation is unfair to China's civil and commercial subjects, and it is not conducive to China's compliance and performance of the new york Convention.

Online arbitration system needs to be improved. The word "Online Arbitration" comes from English "online arbitration" or "Cyber Arbitration" and originated in Europe and America. Nowadays, the development of international commerce has spawned a large number of e-commerce disputes, and traditional arbitration is difficult to solve. At present, the definition of online arbitration is still controversial in academic circles. The focus of the dispute is whether the whole process of online arbitration must be attached to the Internet platform. Specifically, the first view holds that online arbitration refers to the whole process of arbitration procedure, that is, from the beginning of arbitration to the making of an arbitration award, it must be attached to arbitration on the Internet platform, which is the strictest definition; The second view is the most relaxed, that is, as long as online arbitration system or arbitration software is used, arbitration behavior is online arbitration; The third view is that the arbitration in the form of network information exchange is online arbitration.

In my opinion, there are only a handful of arbitration cases limited to the whole process of online practice, and the vast majority of cases are only partially conducted online. Therefore, the definition of online arbitration should not be too narrow. Therefore, it is appropriate to define online arbitration as arbitration in which all or the main process of arbitration procedure is conducted by means of network information exchange attached to the Internet platform. The main flow here includes: filing an arbitration case, defense or counterclaim, selection and composition of arbitration tribunal personnel, trial of arbitration cases and making of awards.

In 2000, China International Economic and Trade Arbitration Commission (CIETAC) established a special domain name dispute resolution center to provide domain name dispute resolution services. In response to international e-commerce disputes, CIETAC formulated a separate online arbitration rule in early 2009, which came into effect on May 1 of the same year. It is the first online arbitration rule independently formulated and implemented by an arbitration institution in the world, which has aroused widespread concern in the international arbitration community. Although online arbitration has been implemented in China at present, there are still some problems to be solved urgently in the online arbitration system:

First, the limitation of legal concept. At present, some parties to commercial disputes in China are still imprisoned by traditional concepts or used to traditional arbitration methods, and are discouraged from emerging online arbitration. They think that online arbitration will lead to the disclosure and improper use of commercial information, or their views can not be fully expressed and accepted. On the contrary, online arbitration is more convenient and efficient than traditional arbitration. Online arbitration can break the original geographical restrictions, and both parties to the dispute can solve their disputes through the network in their respective countries, which greatly saves transaction costs. Good online arbitration will play an active role in international trade and investment.

Secondly, the effectiveness of online arbitration agreement. Another reason why parties to international commercial disputes are unwilling to choose online arbitration is that online arbitration agreements belong to data messages, which will affect the initiation of arbitration or the effectiveness of arbitration results due to the particularity of data messages. In order to confirm the legal effect of online arbitration agreement, China has extended the interpretation of arbitration agreement. Article 16 of the Arbitration Law stipulates that the arbitration agreement may be in other written forms. Article 1 of the Interpretation of the Supreme Court on Several Issues Concerning the Application of the Arbitration Law of People's Republic of China (PRC) clearly stipulates that several forms, including data messages, should be included in the scope of arbitration agreements, thus confirming the legal effect of online arbitration agreements. Unfortunately, this interpretation does not limit the long-term validity of data messages. Because of its particularity, if the data message is not properly preserved by both parties or cannot be retrieved afterwards, it will lead to the result that the arbitration procedure cannot be started or the arbitration award will be revoked. Therefore, the lack of restrictive provisions in online arbitration agreements will weaken the credibility of online arbitration.

Third, the autonomy of the parties has not been fully respected. Article 33 of the Online Arbitration Rules of China International Economic and Trade Arbitration Commission stipulates that the arbitration tribunal may also decide to adopt the conventional on-site trial method according to the specific circumstances of the case; Article 36 stipulates that the arbitration tribunal may decide that the witness will testify by online video conference, or it may decide that the witness will testify by regular on-site hearings or other appropriate means. These two provisions indicate that the arbitral tribunal has the right to change the online arbitration mode to the on-site trial mode without obstacles. This makes the way of online arbitration very uncertain, and the parties to the dispute may not apply for online arbitration because their meaning cannot be fully guaranteed. The parties to the dispute want to choose online arbitration, mostly because the parties to transnational civil and commercial disputes are far away and cannot participate in on-site arbitration. Changing the arbitration method at will not only increases the arbitration cost of the parties, but also adds a lot of inconvenience to the parties.

The Construction of International Commercial Arbitration System in China

De-administration of arbitration institutions. First of all, independence emphasizes clearly defining the nature of arbitration institutions and implementing the provision that "the arbitration commission is independent of the administrative organ and has no subordinate relationship with the administrative organ". It is precisely because the nature of arbitration institutions is not clearly defined in China's arbitration law that there are many disputes about its nature. Therefore, relevant provisions should be added to the arbitration law to clarify the positioning of international commercial arbitration institutions as non-profit legal entities.

Secondly, the folk nature emphasizes that the excessive involvement of administrative organs should be reduced when arbitration institutions are established. In order to ensure the independence of international commercial arbitration institutions, the government should withdraw from providing policy guidance on the content and development direction of arbitration. Apart from the supervision system of the Supreme Court's foreign-related civil and commercial case reports, there should be no other government agencies to supervise the arbitration institutions.

Breakthrough and recognition of ad hoc arbitration. To recognize the temporary arbitration system, we must first get rid of the old concept that "the reliability and professionalism of temporary arbitration are not as good as that of institutional arbitration". Although there are many disputes about the temporary arbitration system in China at present, most of them hold a positive attitude towards the introduction of temporary arbitration itself. The focus of the dispute is when to introduce the temporary arbitration system. Does China have the conditions and environment for introduction now?

The "Belt and Road" strategy represents China's integration into the world economy, and China's foreign trade and investment strategy has also changed from "bringing in" to "going out". As an internationally accepted and applicable system, ad hoc arbitration will become an obstacle to China's trade and economic development if China does not actively try it. China (Shanghai) Pilot Free Trade Zone, as the experimental field of China's foreign-related system reform, can try it first in the free trade zone if it is controversial about whether to introduce the temporary arbitration system, suspend some provisions of the arbitration law in the free trade zone, and authorize the National People's Congress Standing Committee (NPCSC) to apply the special law in the free trade zone. It is suggested that temporary arbitration can be established in the free trade zone through the following provisions: First, the parties are allowed to choose the temporary arbitration system to resolve disputes in the free trade zone; Second, the provisional arbitration rules can be designed by themselves, and can also be applied to the existing arbitration rules, which can be used for reference, such as the arbitration rules of the United Nations Commission on International Trade Law; Third, it is necessary to make it clear that arbitration institutions have the right to appoint arbitrators on their behalf under certain circumstances, so as to prevent the process of temporary arbitration from being hindered by the inability to unanimously select arbitrators; Fourth, clarify the supervisory function of arbitration institutions to arbitrators; Fifth, it is necessary to establish a supervision mechanism for temporary arbitration awards.

Gradually promote the temporary arbitration system in the free trade zone, and absorb experience and reform on the basis of trial implementation. Finally, promote the revision of the arbitration law and establish a temporary arbitration system nationwide.

Popularization of online arbitration. First, actively promote online arbitration. To change the traditional concept, it is still necessary for the Arbitration Commission to actively promote online arbitration. Inform the disputing parties through publicity that online arbitration, like traditional arbitration, is not open and can also protect the business secrets and business reputation of the parties. Online arbitration cases are not heard in public, and no one may disclose the relevant information of the entity and procedure of the case to the outside world. Trade arbitration should also provide network technical support, provide security for online transmission of case data between the parties and the arbitration tribunal, and encrypt the information.

Secondly, the online arbitration agreement is interpreted restrictively. As mentioned above, China has expanded the scope of "written form" of arbitration agreement and recognized the validity of online arbitration agreement. However, China only stipulates that messages can be recognized as arbitration agreements, and there is no restriction on the long-term effectiveness of messages. Because of its particularity, even if the arbitration award has been made, if both parties fail to properly preserve it or cannot retrieve it afterwards, the arbitration award may be revoked because the online arbitration agreement cannot be ascertained. It is necessary to restrict the online arbitration agreement to ensure the reliability and stability of the arbitration award. It is suggested that the Arbitration Law should draw lessons from the UNCITRAL Model Law on Electronic Commerce and interpret "other written forms" in article 16 as follows: if an arbitration agreement is signed through electronic data interchange, and the information contained in the data message can be retrieved for future use, it should also be regarded as a written form. Such amendments are in line with the development direction of international arbitration, and will not invalidate the arbitral award because the provisions are too broad.

Third, optimize the online arbitration rules. It is suggested to amend the provisions of Articles 33 and 36 of CIETAC online arbitration rules. In the case of hearing, the arbitration tribunal has the right to change the arbitration mode to the on-site trial mode or decide the witness to testify in the conventional on-site trial mode or other appropriate ways only if the online arbitration hinders the normal progress. In order to eliminate the uncertainty of online arbitration hearing mode and fully guarantee the autonomy of the parties.