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如何写香港法学仲裁条例assignment?

论文价格: 免费 时间:2019-07-10 10:58:07 来源:www.ukassignment.org 作者:留学作业网
你如何理解“仲裁员是仲裁程序的主人,服从自然公正”的陈述?参照香港仲裁条例(Cap)讨论该声明。609页)。
What do you understand by the statement that “The arbitrator is the master of the procedures in arbitration, subject to natural justice”? Discuss the statement with reference to the Hong Kong Arbitration Ordinance (Cap. 609).
 
香港仲裁条例(Cap)。609)于2011年6月1日生效,适用于在香港进行的仲裁。关于仲裁的仲裁程序,香港主要采用了《联合国国际贸易法委员会法》的具体规定,并作了一些修改和补充。这是一项国际公认的仲裁规则,不同国家和地区的人都能接受。为了回答这个问题,本文同意这一说法,“仲裁员是仲裁程序的主人,服从自然公正”。在这篇文章中,我将参考香港仲裁条例(Cap)讨论我的理解。609页)。The Arbitration Ordinance of Hong Kong (Cap. 609) came into force on June 1, 2011 and it applies to arbitration conducted in Hong Kong. As for the regulatory procedures regarding arbitration, Hong Kong has mainly adopted the specific provisions of the UNCITRAL Model Law of United Nation Commission on International Trade Law with some modifications and supplements. This is an internationally accepted arbitration rule that is acceptable to people from different countries and regions. To answer the question, this essay agrees with this statement, “The arbitrator is the master of the procedures in arbitration, subject to natural justice”. And in this essay, it is going to discuss my understanding with reference to Hong Kong Arbitration Ordinance (Cap. 609).
 
1. Arbitration law is a procedure law仲裁法是程序法
仲裁是庭外解决纠纷的一种方式,通过这种制度、方法或方式,当事人自愿达成协议,将纠纷提交非司法机关的第三人裁决。第三方对争议作出公正的判断并作出裁决。由于其充分尊重当事人的自主性、仲裁员的独立性和专业性、仲裁程序的灵活性和易用性以及广泛的执行这些优势,商业仲裁委员会几个世纪以来,行政管理逐渐演变成了商人们在诉讼之外广受欢迎的争议解决方案。
What do you understand by the statement that “The arbitrator is the master of the procedures in arbitration, subject to natural justice”? Discuss the statement with reference to the Hong Kong Arbitration Ordinance (Cap. 609).
Arbitration is a way of settling disputes outside the courts.By this system, method or way, the parties reach an agreement on a voluntary basis to submit the dispute to a third party who is not a judicial authority for adjudication. The third party makes an impartial judgment of the dispute and makes an award.Due to its full respect for the autonomy of parties involved, the independence and professionalism of arbitrators, flexibility and ease of arbitration procedures, and the broad enforcement such advantages, commercial arbitration has evolved over the centuries to become a widely favored dispute solution among businessmen outside litigation.
 
On the understanding of the value orientation of arbitration, the biggest difference lies in the value between substantive justice and effectiveness. Taking substantive justice as the value of arbitration, which is essentially comparing arbitration blindly with litigation, and it does not recognize the special nature of arbitration as a mechanism outside litigation. The litigation system, with its strict procedure and high authority, practices the substantive justice of the judiciary.It  is the last barrier to people's rights. However, because of its high degree of state coercive authority, once any dispute enters the courtroom, the parties thus have to obey the sacred authority of social justice, all operating have to be in accordance with the established national judicial process.Regardless of whether such proceedings taking into account the parties’ free rights and economic benefits. It is against the cumbersome, rigid and expensive litigation process that savvy businessmen have invented arbitration systems that can flexibly and promptly resolve disputes and clear the obstacles to continue cooperation so that their efficiency interests can be maximized in dispute settlement. Thus, fundamentally, the reason why arbitration exists and flourishes is that it is based on the value of benefits. Compared with its substantive justice, the value orientation of arbitration benefits more emphasis on procedural fairness and connotations the principle of benefit in due process of arbitration. Arbitration law is a procedure law, therefore the arbitrator always should be the master of the procedures in arbitration. 
 
2. Arbitration law subject to nature justice
Arbitration law is subject to nature justice as a procedure law. In order to facilitate the effective compliance of due process by arbitration institutions, arbitration tribunals and arbitration parties during the arbitration process, the specific requirements for due process of arbitration should be clarified. Combined with the above analysis of the general framework of due process of arbitration, this essay is going to take reference of Chapter 609 Arbitration Ordinance of Hong Kong (Cap. 609), discussing how Arbitration law is subject to due process, that is, nature justice.
 
First, Cap. 609 is protecting the rights of arbitration parties. The arbitration tribunal should respect the parties' autonomy of purpose. It can also be described as the autonomy of arbitral proceedings. The protection to the parties is embodied in Cap. 609. In section 3, it says, “...the parties to a dispute should be free to agree on how the dispute should be resolved;and(b)that the court should interfere in the arbitration of a dispute only as expressly provided for in this Ordinance”.That is to say, without violating the mandatory provisions of the Arbitration Law, the parties have the power to agree on all procedural matters and make an agreement in an arbitration. And this agreement should be given priority and respected by the arbitral tribunal at all time. 
 
The arbitration tribunal shall be independent and impartial. In Section 10 of Cap. 609, “[T]he parities are free to determine the number of arbitrators”; in addition, “[T]he parties are free to agree on a procedure of appointing the arbitrator or arbitrators”. (Cap 609, Section 11) This is the embodiment of the first principle of natural justice, "no one can be judge in his own case". In the mainstream of international commercial arbitration, arbitrators should be impartial and independent and should maintain impartiality and independence. This is a fundamental principle. Performances are shown as following: the arbitrator should have contact with one of the parties in private; it should be disclosed on its own initiative and may affect the impartiality of the parties; when there are any doubt about the fairness of the arbitrator, the arbitrator should be avoided and so on.
 
All parties are treated equally and have the full right to be heard. In Cap. 609, Section 46 Article 18 of UNCITRAL Model Law, it refers to equal treatment of parties. That is, “[T]he parties must be treated with equality”, “[T]he tribunal is required ... (a) to be independent; (b) to act fairly and impartially as between the parties, giving them a reasonable opportunity to present their cases and to deal with the cases of their opponents; and (c) to use procedures that are appropriate to the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for resolving the dispute to which the arbitral proceedings relate.”This is the embodiment of the second principle of natural justice. This guarantee means the arbitral tribunal must give all parties the opportunity to be treated and represent their cases in all aspects of the arbitral proceedings. For example, neither the arbitral tribunal nor any arbitrator can refuse to give a similar opportunity to the other party,either in the absence of one of the parties when discussing the case with the other party, or allowing one of the parties to call the witness. The arbitration tribunal shall also conduct its arbitration rationally and expeditiously so as to avoid unnecessary delays and expenditures. It can also be thought the arbitration tribunal should act cautiously and diligently, which is the guarantee of the effectiveness of the arbitration proceedings. The arbitration tribunal must arrange the arbitration process reasonably so that the dispute can be settled at its commensurate deadlines and costs.
 
Second, Cap. 609 is protecting the arbitral tribunal. The arbitral tribunal has the power to decide its own jurisdiction. In short, the arbitration tribunal has jurisdiction over the parties' objection to jurisdiction. This principle is the frontier safeguard for smooth commencement and operation in arbitration proceedings. It helps prevent the parties from delaying arbitration proceedings on the grounds of jurisdiction at any time, and also helps limit the court's time and conditions for intervening in arbitration, so as to enhance the efficiency in dispute resolution. 
 
The arbitral tribunal has the power to conduct the arbitration at appropriate time. Without violating the agreement of the parties, it gives the arbitral tribunal full discretion.This is the guarantee for the arbitration process going on flexibly and efficiently. It is also the trend of arbitration practice and legislation today. As long as the arbitration procedure satisfies the protection of the rights of the arbitration parties just as the above-mentioned first requirement, the specific steps and matters on how to proceed with the arbitration may be arbitrarily decided by the arbitral tribunal at the discretion of the case.#p#分页标题#e#
 
Third, Cap. 609 is protecting the arbitration process.It guarantees the independence of arbitral proceedings, that is, the arbitration proceedings are independent of the judicial control of the court in a considerable degree. In Section 12 Article 5 of Cap. 609, “... no court shall intervene except where so provided in this Law.”Judicial supervision of the court on the arbitration proceedings should be limited, as long as the arbitral tribunal does not violate the minimum procedural fairness, the court should not over-interfere. In Section 16 of Cap. 609, “...proceedings under this Ordinance in the court are to be heard otherwise than in open court”, “The court may order those proceedings to be heard in open court: (a)on the application of any party; or(b)if, in any particular case, the court is satisfied that those proceedings ought to be heard in open court.”In addition, the independence of the arbitration procedure is also manifested as the arbitral tribunal's independent decides on matters of arbitration, without the intervention of arbitration institutions. The arbitration institution serves only as a manager and a servant. And it should disappear when the case is referred to the arbitral tribunal. The significance of safeguarding the independence of the arbitral proceeding lies in making the arbitral proceedings a truly self-sufficient proceeding, a mechanism of dispute resolution that is distinct from litigation and of special value. 
 
Arbitration is different from litigation which is a notable feature because arbitration is a one-shot finality, making the arbitration process timely and efficiently. Once the final award has been passed through the arbitration proceedings, it is bound with the parties and it can not be arbitrarily overturned. Even if there is a special cause of the award, the parties must restart another procedure to correct the result. Confidentiality of arbitral proceedings is generally considered as one of the important advantages of arbitration. In Section 18, paragraph (1) of Cap. 609, “[U]nless otherwise agreed by the parties, no party may publish, disclose or communicate any information relating to(a)the arbitral proceedings under the arbitration agreement; or(b)an award made in those arbitral proceedings.”Arbitral proceedings are private, non-public proceedings. It allows the dispute to be solved in private, the parties do not have to worry about their own goodwill damaged by the controversy, which is more conducive to a compromise between the two sides, and this does not affect future cooperation.
 
3. Summary
Arbitration needs to meet a series of procedural requirements. Obviously, this is not the same as the standard of process of legal proceedings in general, and some are even contradictory in some respects, such as the confidentiality of arbitration proceedings and the openness of general legal proceedings. Subject to value of nature justice, on the one hand, arbitration should avoid the absolute standardization of due process of arbitration and facilitates arbitral tribunal discretion. On the other hand, it also emphasizes the requirement of due process in arbitration,this is mandatory neither the parties nor the arbitral tribunal may impose any penalty. If an arbitrator violates the relevant requirements, he can be replaced, which will have a significant impact on their career prospects. For the arbitration tribunal and its favorable party, the violation of due process in arbitral awards may be excused by the court on its own merits or on the application of the other party, or it will face no implementation dilemma. In a word, arbitration law is a procedural law, all qualified arbitrators must be the master of the procedures in arbitration. Natural justice is a core value of arbitration, which has embodied in the legal provisions of Cap. 609.
 
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