Arbitration refers to a dispute settlement method in which both parties agree to submit the dispute to a third party (with recognized status), and the third party will judge the merits of the dispute and make a ruling. Arbitration is different from litigation and trial. Arbitration requires both parties to be voluntary, which is also different from compulsory mediation. It is a special kind of mediation and voluntary arbitration, which is different from compulsory arbitration such as litigation.
Arbitration is generally a system in which the parties voluntarily submit their disputes to an arbitration tribunal composed of arbitrators from non-judicial institutions for arbitration according to the arbitration agreement concluded by both parties and are bound by arbitration. Arbitration activities, like court trial activities, are related to the substantive rights and interests of the parties and are one of the ways to solve civil disputes.
Main terms
Fact-finding: the process of letting a neutral third party openly exert pressure on the disputing parties, and resolving disputes by evaluating and publishing reports or supporting documents related to facts.
Final quotation selection: The Chinese side makes a choice from various schemes proposed by both parties to the dispute, but the Chinese side cannot propose a compromise scheme.
Appeal or right arbitration: a dispute settlement procedure in which both parties accept the neutral party to clarify the rights and obligations of both parties in dispute according to the provisions of the labor agreement.
Appeal procedure: the routine procedure stipulated in the labor contract. In this procedure, employers and trade unions determine the breach of contract; Arbitration is the last choice.
Interest or contract arbitration: a dispute settlement procedure to solve problems related to collective agreements or problems beyond agreements.
Justifiable cause: it is a kind of litigation process. Through this procedure, the legitimate rights of individuals can be protected through the appeal procedure of commercial judgments.
Mediation or mediation: A procedure used by the neutral party to persuade or urge the two parties to reach an agreement, but it has no right to make an award that is binding on both parties.
Neutral: a person (or group) who participates in the decision-making process and is defined by law or regarded as fair by both parties to the dispute.
Submit an agreement: the Chinese side must make a decision on matters that the two parties to the dispute cannot reach an agreement. [ 1]
The so-called compulsory arbitration: a legal ruling made by a government agency or a specific agency on a dispute based on unilateral requirements, and the ruling result must be acceptable to both parties to the dispute. Because it violates the voluntary nature of arbitration, it is generally considered as a misnomer of compulsory mediation and pseudo-arbitration.
application area
The scope of application of arbitration refers to which disputes can be resolved through arbitration and which disputes cannot be resolved through arbitration. This is what we usually call "arbitrability of disputes".
Article 2 of the Arbitration Law stipulates that "contract disputes and other property rights disputes between citizens, legal persons and other organizations with equal subjects may be arbitrated". Three principles are defined here: first, the parties to a dispute must be civil subjects, including domestic and foreign legal persons, natural persons and other legal person organizations with independent subject qualifications; Second, the disputed matters in arbitration should be matters that the parties have the right to dispose of; Third, the scope of arbitration must be contract disputes and other property rights disputes.
Contract disputes refer to disputes arising from the conclusion or performance of various economic contracts by both parties in economic activities, including domestic economic contract disputes, intellectual property disputes, real estate contract disputes, futures and securities trading disputes, insurance contract disputes, loan contract disputes, bill disputes, mortgage contract disputes, transportation contract disputes, maritime disputes between legal persons and natural persons with equal subjects at home and abroad, and foreign-related disputes involving Hong Kong, Macao and Taiwan provinces.
Other property disputes mainly refer to disputes caused by infringement, which are more common in the fields of product quality responsibility and intellectual property rights.
According to the provisions of the Arbitration Law, there are two types of disputes that cannot be arbitrated:
1. Disputes over marriage, adoption, guardianship, support and inheritance cannot be arbitrated. Although these disputes are civil disputes, they also involve property rights disputes to varying degrees. However, these disputes often involve the identity relationship that the parties themselves can't freely dispose of, and need the judgment of the court or the ruling of the government, which is not within the jurisdiction of the arbitration institution.
2. Administrative disputes cannot be decided. Administrative disputes, also known as administrative disputes, refer to disputes between state administrative organs, or between state administrative organs and enterprises, institutions, social organizations and citizens due to administrative management. Foreign laws stipulate that such disputes should be resolved through administrative reconsideration or administrative litigation according to law.
The Arbitration Law also stipulates that the arbitration of labor disputes and agricultural contract disputes within agricultural collective economic organizations shall be stipulated separately by the state, which means that the Arbitration Law is not applicable to solving such disputes. This is because labor disputes and agricultural contract disputes within agricultural collective economic organizations can be arbitrated, but unlike ordinary civil economic disputes, they can only be adjusted through other provisions.