1. What's the difference between construction contract litigation and arbitration?
First, the premise of starting is different. To start the arbitration procedure, both parties must first reach an agreement to submit the dispute to arbitration, which can be expressed through a special arbitration agreement or an arbitration clause in the contract. The time to reach an agreement can be before, during or after the dispute. Secondly, both parties must also unanimously select a specific arbitration institution. Only arbitration institutions that meet the above conditions will accept it. As far as litigation is concerned, as long as one party thinks that its legitimate rights and interests have been infringed, it can bring a lawsuit to the court without the consent of the other party. In this way, the conditions of litigation are much broader.
Second, the scope of accepting cases is different. Arbitration institutions generally only accept civil and commercial and economic cases (excluding disputes over marriage, adoption, guardianship, support and inheritance), and do not accept criminal and administrative cases. In the above cases, the parties may have a lawsuit.
Third, the provisions of jurisdiction are different. There is no subordinate relationship between arbitration institutions, and arbitration does not implement hierarchical jurisdiction and regional jurisdiction. Under normal circumstances, no matter where the dispute occurs and how big the subject matter of the dispute is, the parties can arbitrarily choose an arbitration institution with high ruling level and good reputation throughout the country. People's courts are divided into four levels. The higher court has the function of supervision and guidance to the lower court, and the litigation is subject to hierarchical jurisdiction and territorial jurisdiction. According to the specific circumstances of the dispute between the two parties, determine which level of court and which area of court has jurisdiction. A court without jurisdiction shall not accept a case at will, nor shall the parties choose it at will.
Fourth, the right to choose a referee is different. In arbitration, if the parties agree that the arbitration tribunal shall be composed of three arbitrators, they shall respectively select or entrust the chairman of the Arbitration Commission to appoint one arbitrator, and the third arbitrator shall be jointly selected by the parties or jointly entrusted by the chairman of the Arbitration Commission to appoint one arbitrator. In litigation, the parties have no right to choose a judge. However, under legal circumstances, the judge can be asked to withdraw, or the summary procedure (only one judge) can be transferred to the ordinary procedure (a collegiate bench composed of three judges).
Fifth, the openness of the hearing is different. Arbitration is generally not conducted in public, but the parties may make it public by agreement, except those involving state secrets. The people's court shall generally hear cases in public, but it shall not do so if it involves state secrets, personal privacy or otherwise provided by law. Divorce cases and cases involving commercial secrets may be heard in private upon the application of the parties.
Sixth, the final procedure is different. Arbitration shall be subject to the one-award system, and the award made by the arbitration tribunal after the hearing shall be final and take effect immediately. However, labor dispute arbitration is an exception. If the parties refuse to accept the arbitration award, they can also bring a lawsuit to the court. The lawsuit is subject to the system of two trials and final adjudication, and a case is terminated after being tried by two people's courts and has legal effect. Of course, there are also special circumstances, such as voter qualification cases, cases of declaring missing and dead, cases of determining that citizens have no civil capacity and limited civil capacity, and cases of determining that property is ownerless, which are subject to first instance and final instance.
Seventh, the difference of coercive force. Arbitration institutions have no right to take compulsory measures against the parties who interfere in arbitration activities. The people's court may take compulsory measures such as compulsory summons, admonition, order to leave the court, fine and detention against the parties who interfere with litigation activities. When the parties refuse to perform the award made by the arbitration institution, the arbitration institution has no right to enforce it, and only one party can apply to the people's court for enforcement with the award. When a party refuses to perform the obligation of an effective judgment made by the people's court, the people's court may decide on its own or take enforcement measures upon the application of the party.
2. What contract disputes can be applied for arbitration?
First, economic contract disputes. Including purchase and sale, construction project contracting, processing contracting, cargo transportation, power supply, warehousing, property leasing, loans, property insurance and other economic contract disputes.
Second, real estate contract disputes. Including real estate transfer, real estate mortgage, housing lease contract disputes.
Third, technical contract disputes. Including technical development, technology transfer, technical consultation and technical service contract disputes.
Fourth, financial, securities and futures trading disputes.
Fifth, intellectual property contract disputes. Including copyright and trademark licensing contract disputes, patent licensing contract disputes.
Sixth, foreign-related economic contract disputes. Including foreign-related sales, consignment sales, transportation, technology transfer, leasing, insurance and Sino-foreign joint ventures and cooperation contract disputes, as well as other foreign-related economic and trade contract disputes.
Seventh, maritime and maritime contract disputes. Including maritime cargo transport, maritime passenger transport, ship leasing, maritime tugboat, marine insurance contract and other disputes.
Eighth, disputes over property rights such as civil contracts. Including non-contractual disputes such as private lending, personal partnership and property infringement.
The handling of contract litigation and arbitration should be determined according to the type of contract and the consequences. Generally speaking, it can be determined according to the specific standards of arbitral awards. However, if there is any objection to the arbitration award, it can be considered that there is a problem in the application of law in the arbitration award, and further litigation can be brought.