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如何寫香港法學仲裁條例assignment?

時間:2019-07-10 10:58來源:未知 作者:anne 點擊:
你如何理解仲裁員是仲裁程序的主人,服從自然公正的陳述?參照香港仲裁條例(Cap)討論該聲明。609頁)。 What do you understand by the statement that The arbitrator is the master of the procedures in arbitration
你如何理解“仲裁員是仲裁程序的主人,服從自然公正”的陳述?參照香港仲裁條例(Cap)討論該聲明。609頁)。
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).
 
香港仲裁條例(Cap)。609)于2011年6月1日生效,適用于在香港進行的仲裁。關于仲裁的仲裁程序,香港主要采用了《聯合國國際貿易法委員會法》的具體規定,并作了一些修改和補充。這是一項國際公認的仲裁規則,不同國家和地區的人都能接受。為了回答這個問題,本文同意這一說法,“仲裁員是仲裁程序的主人,服從自然公正”。在這篇文章中,我將參考香港仲裁條例(Cap)討論我的理解。609頁)。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
仲裁是庭外解決糾紛的一種方式,通過這種制度、方法或方式,當事人自愿達成協議,將糾紛提交非司法機關的第三人裁決。第三方對爭議作出公正的判斷并作出裁決。由于其充分尊重當事人的自主性、仲裁員的獨立性和專業性、仲裁程序的靈活性和易用性以及廣泛的執行這些優勢,商業仲裁委員會幾個世紀以來,行政管理逐漸演變成了商人們在訴訟之外廣受歡迎的爭議解決方案。
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.


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