What Does an Adjudicator Do?

The legislation of different countries on the qualifications of arbitrators is not consistent. Individual countries have strict regulations on the qualifications of arbitrators, such as Taiwan, China, South Korea, and Italy. They have strict regulations on arbitrators, and they have also stipulated certain circumstances in which they cannot be arbitrators. However, most countries have stipulated that Relatively loose, such as Germany and Japan. Generally speaking, as long as they are capable and of good character, a fair and unselfish natural person can serve as an arbitrator. There are also a few countries that do not make clear the qualifications of arbitrators, such as There are no statutory restrictions on the persons employed as arbitrators in the 1996 Arbitration Act. Article 13 of the 1994 "Arbitration Law" of China stipulates the qualifications of arbitrators: the arbitration commission shall hire arbitrators from fair and decent people.

Arbitrator

The legislation of different countries on the qualifications of arbitrators is not consistent. Individual countries have strict regulations on the qualifications of arbitrators, such as Taiwan, China, South Korea, and Italy. They have strict regulations on arbitrators, and they have also stipulated certain circumstances in which they cannot be arbitrators. However, most countries have stipulated that Relatively loose, such as Germany, Japan, these countries as a whole as long as

1. Accept

Hearers of arbitration cases. Conditions for arbitrators:

1. Support the party's line, principles, and policies,

Selection range

-Roster system

According to our current "

Our country

Vocational qualification examination

1. The author proposes to modify "

Arbitrator rights

China's arbitration law does not provide for the rights of arbitrators, and assigns some rights that should belong to the arbitral tribunal to the arbitration commission. This is not only detrimental to the fair and independent, serious and responsible trial of the case by the arbitrator, nor can it better reflect the principle of party autonomy, and it will not fully play the role of the arbitral tribunal. This misplacement of powers is mainly reflected in the following aspects: First, Article 20, paragraph 1, of the Chinese Arbitration Law states: "If the parties have objections to the validity of the arbitration agreement, they may request the Arbitration Commission to make a decision or ask the people's court to do so. Decision. "This provision clearly gives the arbitration commission, rather than the arbitral tribunal, the right to confirm arbitration jurisdiction, which runs counter to the widely accepted principle of" self-administration jurisdiction ". Moreover, the arbitration institution can make decisions on jurisdictional issues such as the existence of an arbitration agreement without obtaining any authorization from the parties. This is obviously illogical. Second, Article 52 of our arbitration law states: "Signature and seal of the arbitration commission", Article 54 stipulates that "the arbitration award is signed by the arbitrator and stamped by the arbitration commission seal". These two provisions state that the arbitral tribunal and the mediation commission shall jointly exercise. It is ridiculous that the arbitration commission does not participate in the substantive trial of the case, but strictly adheres to the final hurdle of the trial. Moreover, the parties only selected arbitrators to hear the case and did not authorize the Arbitration Commission to check. This practice of the arbitration commission is unavoidable. Third, China's arbitration law has relatively few provisions on arbitrators' rights to arrange arbitral proceedings. However, the arbitration commission has a comprehensive arrangement of arbitral proceedings, and many links are subject to Arbitration institutions make the arbitral tribunal in a passive position, which is not conducive to the trial of arbitration cases.

Therefore, it is necessary to expand the rights of the arbitral tribunal and arbitrators, grant the arbitral tribunal "adjudication jurisdiction", change the practice of arbitrating awards and mediations with the seal of the arbitration commission, and arrange relevant procedural issues before the formation of the arbitral tribunal. Once the arbitral tribunal is established and the case is transferred to it, all matters related to the arbitral process, including the time and place of the hearing, the language used, and the time limit for the parties to submit evidence materials, etc. shall be determined by the arbitral tribunal. Only macro management functions should be exercised, and involvement in individual procedural issues can only be limited to the scope of assistance at the request of the arbitral tribunal.

In addition, the author believes that China's arbitration legislation should also give the arbitral tribunal the right to take interim preservation measures. Our law stipulates that only courts have the right to take property preservation measures, while China's arbitration rules for property preservation cannot operate. Article 17 of the Model Law on International Commercial Arbitration, which embodies the basic spirit and trend of modern international commercial arbitration, has clearly given the arbitral tribunal the right to take safeguard measures. In order to maintain the authority of arbitration and avoid the disconnection between arbitration in China and international arbitration, we need to The arbitration preservation system was modified.

Arbitrator Liability

Article 38 of China's "Arbitration Law" stipulates two situations in which arbitrators should bear legal liability, but does not stipulate what kind of responsibility the arbitrator should bear. This thick-lined rule adds difficulty to judicial enforcement.

The author believes that it is necessary to refine the liability system of arbitrators in China. The first unquestionable point is that the arbitrator should be held accountable. Regardless of the restriction of rights or the requirement of consistency of rights and obligations, it is necessary to stipulate the liability of arbitrators [7]. As for the scope of the arbitrator's liability, the author tends to "the theory of limited liability", which means that the arbitrator can enjoy immunity from liability to a certain extent. The arbitrators shall be exempted from performing quasi-judicial duties, while the arbitrators shall still be held liable for intentional or gross negligence [8].

Should the arbitrator bear administrative, criminal or civil liability? The arbitration commission is a private institution legal person, not a state administrative agency, and the arbitrator is a person who conducts adjudication in the name of an individual, not a staff member of a state agency, or a counterparty in administrative legal relations. The civil servant should bear a civil liability. So how can an arbitrator bear this "limited" civil liability?

The author believes that it should be appropriate to limit the civil liability of the arbitrator. If the arbitrator's wrongdoing does not cause actual losses to the parties, his civil liability should be limited to the refund of the arbitration fee; For repayment, the civil liability assumed shall be a reasonable loss of interest on the amount involved. If the arbitrator's wrongdoing causes other economic losses to the parties, additional compensation is required, but the amount of compensation should be no more than a certain amount. In addition, if the arbitrator's wrongdoing is a solicitation of bribes, the money and materials claimed by the arbitrator shall be returned to the parties; in the case of a bribe, the money and materials received shall be confiscated by the relevant state organs [9]. The author also believes that the scope of the arbitrator's liability under the Chinese arbitration law is too narrow and is not conducive to the protection of the rights of the parties. It is recommended to add two contents: one is that the arbitrator deliberately breaches the obligation of confidentiality and leaks the case; the other is that the arbitrator should complete it in time Arbitration tasks, if the arbitration tasks cannot be completed on time. The arbitrator shall be legally responsible [10].

The arbitration community has a famous saying, "The full value of arbitration lies in the arbitrator". In view of the role of arbitrators in the arbitration process, there will never be a satisfactory arbitration system without an arbitrator that the parties are satisfied with. Based on the important position of the arbitrator system in the entire arbitration legal system, China's arbitration theory and practice circles should seriously treat the various legal issues surrounding arbitrators in arbitration practice, and seek legal countermeasures and solutions. Make necessary amendments to laws and related rules, and set up a system of arbitrators in line with international standards at an early date.