Arbitration independence of arbitration institutions

China's Arbitration Law was promulgated on August 30, 1994, which clearly stipulates that "the Arbitration Commission is independent of the administrative organ and has no subordinate relationship with the administrative organ". When China entered WTO, it also promised to the international community that "arbitration fee is the fee of intermediary service". 1999 promulgated and implemented the Outline of the Eleventh Five-Year Plan for National Economic and Social Development (hereinafter referred to as the Outline), which also explicitly included arbitration in the category of "operational services".

However, it has been more than ten years since the promulgation of the Arbitration Law, and China's arbitration system still continues the administrative arbitration system to a great extent. Wang said at the symposium that due to the lag of China's arbitration system, the reality has deviated from the legislative principles of the arbitration law, and some arbitration institutions "do not distinguish between political (political) committees (arbitration committees)", which have a serious administrative tendency and rely too much on the government; The arbitration procedure can't truly reflect the essential features of the arbitration system, such as the principle of voluntariness of the parties, simplicity and flexibility, which not only damages the international reputation of arbitration's independence and impartiality, but also affects the normal development of arbitration under the market economy.

Because arbitration involves all aspects of interests, especially the transformation of government functions, the reform of arbitration will "affect the whole body" and "privatization of arbitration" is doomed to have a long way to go.

Beijing Arbitration Commission —— Pioneer of Arbitration Institution Reform

Beijing Arbitration Commission (hereinafter referred to as Beizhong) was established on September 28th, 1995. At the beginning of its establishment, Beizhong 1995 only accepted 7 cases, and the subject matter of the dispute was 44 million yuan; After ten years' development, by the end of March, 2006, the number of cases accepted by Beizhong had reached 8 122, involving more than 34 billion yuan. Beizhong has grown from a newly established arbitration institution to a modern arbitration institution with credibility and strength. The success of Beizhong is not only the result of deep implementation of the spirit of the arbitration law and hard work of self-reliance, but also the correctness of the basic principles and development direction established by the arbitration law. The article "Ten Years Review of Beijing Arbitration Commission" written by Wang, Secretary-General of Beizhong University, will summarize and review the development of Beizhong University in the past ten years from three angles: democratization of arbitration institutions, construction of modern arbitrator system and internationalization of arbitration, so as to arouse all sectors of society to think about the road of building modern arbitration institutions and explore the development law of China arbitration system.

It is a basic principle of arbitration law to reform the old administrative arbitration system, highlight the folk nature of arbitration institutions and ensure their independence and impartiality. Due to the inertia of ideology, thinking habit, management system and operation mode formed by the administrative arbitration system under the planned economy, and the lack of corresponding supporting measures and policies to ensure the independence of arbitration institutions after the implementation of the Arbitration Law, there has been confusion and debate on whether and how to adhere to the folk nature of arbitration institutions. This shows that any major institutional reform needs not only correct objectives and basic principles, but also specific, feasible, systematic, advancing with the times supporting policies, measures and methods, as well as persistent execution. If there are only objectives and principles without supporting policies, measures and methods, or the supporting policies, measures and methods are far from or even diametrically opposite to the objectives and principles, not only will the reform be difficult to succeed, but people will even doubt the correctness and feasibility of the reform objectives when evaluating the success or failure of the reform afterwards.

Bei Zhong believes that the provision in the Arbitration Law that "the arbitration commission is independent of the administrative organ and has no subordinate relationship with the administrative organ" is an important content and basic principle of the old administrative arbitration system reform. The "non-administrative" nature of arbitration institutions and the development direction of the people are clarified, that is, arbitration institutions are not only "independent of administrative organs and have no subordinate relationship with administrative organs" in organization, but also fundamentally different from administrative organs and "administrative institutions" that exercise administrative power according to law in the nature of taking responsibility. Although according to the spirit of the the State Council Document, the local government gave the necessary financial support to the arbitration institution at the initial stage of its establishment, the "non-administrative" nature of the arbitration institution and its privatization direction have not changed. Privatization of arbitration institutions is the guarantee of independence and impartiality of arbitration institutions, and it is the institutional basis for arbitration to overcome the disadvantages of chief executive's will, administrative intervention and local protectionism and improve its credibility. Therefore, this is not only the need to implement the arbitration law, but also the objective requirement for arbitration institutions to improve their reputation and maintain long-term vitality.

Of course, the democratization of arbitration institutions is not an abstract theoretical concept, but a concrete, gradual and dynamic practical process. In this process, arbitration institutions should not only decouple human resources, financial resources and material resources from administrative organs, get rid of the material conditions controlled by the government and carry out arbitration independently, but also create a set of systems, mechanisms, modes, means and methods that conform to the characteristics, laws and development direction of arbitration, have low cost, high efficiency and good benefits, and support the benign operation of the former. To this end, Beizhong has taken the following measures in the spirit of reform:

Maintain the expert and scholar characteristics of the members of the arbitration commission.

North China * * has 0/3 members, with Professor Jiang Ping, a famous civil and commercial scientist in China, as the director, and famous scholars from Tsinghua University, Peking University, Renmin University and China Academy of Social Sciences as deputy directors and members. More than two-thirds of the members are "experts in the fields of law, economy and trade". Since its establishment ten years ago, Beizhong has undergone three transformations, and this feature has not changed so far. Committee members' profound humanistic spirit, professionalism and deep understanding of legal spirit make Beizhong always adhere to the value orientation of independence and justice in all decision-making.

Work under the leadership of the Arbitration Commission.

The Beijing Arbitration Commission Office (hereinafter referred to as the Office) is an office in Beizhong, which carries out its work under the leadership of the Arbitration Commission, and its personnel, finance and property management offices make their own decisions without interference from the government and administrative organs. At that time, the leader of the Legislative Affairs Office of the Beijing Municipal Government (hereinafter referred to as the Legislative Affairs Office), who was in charge of the reconstruction of the Arbitration Commission, clearly stated that "the government's greatest support for arbitration is non-intervention", but non-intervention does not mean no support. When the arbitration institution encounters difficulties, the government departments should give necessary help. This concept has been recognized and adhered to by the leaders of previous legislative affairs offices, laying a solid foundation for North China to carry out its work independently. In order to achieve economic self-reliance and achieve the requirement of "self-supporting and self-supporting gradually in a few years" stipulated in the the State Council document, the institute carried forward the spirit of self-reliance and hard struggle, carefully calculated while actively developing its business, and achieved the goal of "self-supporting and self-supporting" after three years of establishment, and achieved enterprise management of public institutions five years later, and gained greater operational autonomy through tax payment. Today, Beizhong not only pays a considerable amount of tax to the state, but also owns more than 3,000 square meters of office space, 59 parking spaces and modern office equipment and facilities in China Merchants Tower in the center of Beijing CBD.

Establish and improve the management system in line with arbitration.

Establish and improve the employment mechanism and management system in line with the law of arbitration development and market demand, carry out concept innovation and system innovation, and seek benefits from management. In order to completely change the administrative management system, mechanism and mode, and overcome the bureaucratic style of overstaffed, inefficient, "unable to get in, ugly face and difficult things" and corruption phenomena such as favoring public interests, damaging public interests and abusing power for personal gain, the office has taken a series of reform measures since its establishment: First, all office staff are openly recruited for the society, competing fairly and selecting the best candidates, and putting an end to "back door" and "abusing power for personal gain" in talent recruitment.

Secondly, it is necessary to set up posts according to things, employ people according to posts, and keep personnel lean and efficient. Since Beizhong was founded ten years ago, the number of cases accepted has increased from 7 in 1995 to 796 in 2004, and the number of staff has gradually increased from 7 to 25. The secretary is the undertaker of office work. At present, 20 secretaries come from the law schools of 1 1 famous institutions of higher learning, such as Peking University, Tsinghua University, Renmin University, University of Political Science and Law, Wuhan University, Jilin University, Foreign Affairs College, university of international business and economics, and City University of Hong Kong, with an average age of less than 28. Among them, 15 holds a master's degree and is honest, honest and diligent. The background from different academic environments in many universities is helpful to form a multi-dimensional thinking mode of secretaries, and to achieve * * * knowledge and tolerance of differences through communication. This is not only conducive to stimulating employees' imagination and creativity, improving work performance, but also conducive to the democratic management of the office. Third, break the "iron rice bowl" and implement a full-time appointment system, and clarify the rights and obligations of units and staff through labor contracts. Staff who engage in malpractices for selfish ends, eat and drink with public funds, abuse power for personal gain, violate the requirements of clean government or work irresponsibly, do not strive for progress, and their performance fails to meet the requirements of post responsibilities should be dismissed or no longer employed, and serious disciplinary action should be taken to prevent negative phenomena such as corruption and laxity.

Fourth, according to the nature of the work, we should limit the number of years of posts, maintain the reasonable flow of personnel and the reasonable setting and adjustment of posts, and select and train talents in a wider range in the office to keep the staff at a high level in the flow.

Fifth, establish and gradually improve the unity of "responsibility", "power" and "benefit", clarify the post responsibility system and performance appraisal system of "morality", "talent" and "achievement", break the "big pot", implement the competition, incentive and restraint mechanism based on the salary price in the talent market, link income with unit benefits and post performance, and attract people through effective salary incentives. Sixth, establish a democratic, cooperative and self-managed team management model. Units and employees create identity on the basis of * * * goals and values, and transform hierarchical and bureaucratic administrative management mode into a team management mode with joint interaction, complementary advantages and continuous evolution: give employees the power of self-management and self-responsibility, implement project responsibility system, guide employees to "find appropriate ways to improve their own and organizational influence by solving personal challenges and problems", and build their career development on their own professional reputation. Encourage employees to communicate frankly, learn from each other, help each other and support each other in an atmosphere of mutual respect, understanding and trust, so as to form intimate and harmonious interpersonal relationships and a relaxed and harmonious workplace atmosphere, so that everyone can feel "job satisfaction, pride of achievement, enjoyment of the process, and sense of contribution, common happiness and stimulation of new challenges", so as to achieve a win-win effect of promoting the professional development of units and employees. Seventh, "people-oriented" care and care for employees. The so-called "people-oriented" not only refers to the satisfaction of people's material conditions, but also refers to the concern for people's hearts and destiny. While continuously improving the welfare benefits of employees, the office pays attention to the spiritual shaping and character cultivation of employees. Through various forms of quality training, ideological exchanges and dialogues, and activities organized by the Communist Youth League, employees are helped to establish correct values, form a healthy mentality and sound personality, learn to be a man while learning to do things, and become "real people with high vision, wide realm and extremely rich inner world". In order to enrich the amateur cultural life of employees, the office trade union has set up a football team and a basketball team, and organizes competitions such as table tennis, football, basketball, swimming and typing every year, which enlivens the atmosphere and promotes the physical and mental health of employees.

Boldly adopt the innovative achievements of electronic information technology

Boldly adopt the innovative achievements of electronic information technology, accelerate the pace of office modernization, and improve service quality and efficiency.

Electronic management mode of enterprises

At the time of preparation, Beizhong cooperated with the computer company * * * to develop the arbitration case management software for arbitration procedure management, and with the application of the management software, it has been constantly revised and upgraded, making its functions increasingly powerful and its management scope wider and wider: the whole process of arbitration from the beginning, hearing, hearing and closing, as well as case statistics, time control, inquiry of arbitrators and secretaries, files and fees. This enterprise electronic management mode not only automatically completes a lot of trivial, complicated and repetitive work such as document editing, printing, statistics and notification through computer management programs, reduces labor intensity and avoids forgetting and negligence, but also transforms many people's experience, wisdom, inspiration and creativity into a transparent and standardized workflow that is easy to master and operate, and improves service quality and efficiency.

Forum system reform

The office and the leading professional forum software company in China reformed the advanced forum system Discuz based on PHP language and MySQL database, and applied it to the office LAN system, and established an online office, which realized the real-time interaction and exchange of all staff, ensured the release of information in the office, and promoted the sharing of information, knowledge, experience and technology and the exchange of thoughts and feelings among comrades.

A message system is developed.

The office cooperated with Peking University Computer College to develop an instant messaging system based on network communication socket technology and Java language (hereinafter referred to as instant messaging system). The system can automatically prompt the parties and arbitrators through SMS, email, mobile phone and landline SMS, and improve the efficiency and accuracy of the secretary in handling arbitration proceedings.

Transform the arbitration hall.

In order to meet the needs of arbitration technical disputes and international commercial disputes, the Bureau expanded and reformed the arbitration hall. There are 13 arbitration halls in Beizhong, all equipped with computers, digital recording and video recording systems. Four arbitration halls and an international conference room (which can accommodate more than 65,438+000 people) have adopted auxiliary multimedia solutions to facilitate meetings and court sessions, including: integrated wiring system, intelligent access control system, central control system, audio-visual system and wireless network system. The three arbitration halls and international conference rooms are equipped with systems and equipment such as simultaneous interpretation system, telephone conference system, electronic whiteboard and physical projector, which can enable arbitrators, parties and agents from different regions and countries to hold court sessions, mediation and meetings at the same time, provide more economical and convenient services for the parties, and strengthen academic cooperation and exchanges between arbitrators and their international counterparts.

Market idea

Open Chinese, English, Japanese and Korean websites and update them in time, strengthen the ties between North China and all walks of life, and actively publicize and promote the arbitration system.

Reflect the customer-centered service consciousness and the market concept of winning by service. Taking the parties as the core means that all work should be based on how to meet the requirements of the parties for arbitration; Winning by service means that arbitration institutions win the market and development by service, not by monopoly and power. From the warm, courteous, thoughtful, thoughtful, accurate and efficient service of the staff to the requirements and measures of the arbitration commission for arbitrators to handle arbitration cases seriously, diligently, fairly and efficiently; From the system design that respects the wishes of the parties to the greatest extent in arbitration rules and procedures, to the technical facilities and means that facilitate the parties to realize their arbitration rights (such as arbitrator information inquiry system, instant messaging system for notifying procedural matters, audio-visual system for displaying various audio-visual media formats and media evidence, and telephone conference system for arbitrators, parties and agents in different regions and countries to hold court sessions and conduct mediation activities at the same time, etc.). ); From the decoration of the arbitration hall full of equal, relaxed and harmonious environment, to the documents, forms, newspapers, telephones, mineral water and paper cups provided by the filing room and lounge for the parties and agents, to the underground parking spaces for the parties and agents to park for free. .......................................................................................................

The arbitration institution agreed to deal with the unknown.

Generally speaking, if the agreement on the arbitration institution is unclear and the agreement on the name of the arbitration institution is inaccurate, but the specific arbitration institution can be determined, the arbitration clause shall be deemed valid; If the specific arbitration institution cannot be determined, the specific arbitration matters and the arbitration commission have not been agreed, and the parties have not reached a supplementary agreement, the arbitration clause is invalid, and if one party brings a lawsuit to the court, the court can accept it. The following are the contents of relevant legal provisions:

Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Arbitration Law of People's Republic of China (PRC) [2006] Fa Shi Zi No.7

Article 3 If the name of the arbitration institution stipulated in the arbitration agreement is inaccurate, but the specific arbitration institution can be determined, it shall be deemed that the arbitration institution has been selected.

Article 4 If the arbitration agreement only stipulates the arbitration rules applicable to the dispute, it shall be deemed that the arbitration institution has not been agreed, unless the parties reach a supplementary agreement or can determine the arbitration institution according to the agreed arbitration rules.

Article 5 If there are more than two arbitration institutions stipulated in the arbitration agreement, the parties may choose one of them by agreement to apply for arbitration; If the parties fail to reach an agreement on the choice of arbitration institution, the arbitration agreement shall be invalid.

Article 6 If the arbitration agreement stipulates that arbitration shall be conducted by an arbitration institution in a certain place, and there is only one arbitration institution in that place, the arbitration institution shall be regarded as the agreed arbitration institution. If there are more than two local arbitration institutions, the parties may choose one of them by agreement to apply for arbitration; If the parties fail to reach an agreement on the choice of arbitration institution, the arbitration agreement shall be invalid.

Article 7 If the parties agree that they can apply to an arbitration institution for arbitration or bring a suit in a people's court, the arbitration agreement is invalid. However, one party applies to an arbitration institution for arbitration, unless the other party fails to raise an objection within the time limit stipulated in the second paragraph of Article 20 of the Arbitration Law.

Article 12 A case in which a party applies to a people's court to confirm the validity of an arbitration agreement shall be under the jurisdiction of the intermediate people's court where the arbitration institution is located as stipulated in the arbitration agreement; If the arbitration institution stipulated in the arbitration agreement is unclear, it shall be under the jurisdiction of the intermediate people's court in the place where the arbitration agreement is signed or where the respondent is domiciled.