On Waiver of Objection and Review of Objection in Chinese Arbitration Proceedings

서지정보

· 발행기관 : 한중사회과학학회
· 수록지 정보 : 한중사회과학연구 / 20권 / 1호 / 300 ~ 325페이지
· 저자명 : 朱福勇, Tao Huai Chuan

초록

In arbitration proceedings, waiver of objection has become a rule commonly followed in international commercial arbitration. However, in practice, the absence of principles and standards for judicial review of objection waivers in China, the relative absence of theoretical research, and the differences in judges’ perceptions of the basis for review of objection waivers have, to a certain extent, caused differences in the results of judicial review and inhibited the credibility of arbitration and the authority of judicial review results. In this regard, using comparative and empirical research methods, from the basic theory and practice of arbitration, we propose that the judicial review of waiver of objection in China should follow the principles of respecting the party autonomy, guaranteeing minimum due process, estoppel, and speedy resolution of disputes; Drawing on overseas experience, it is expressly provided that the court shall not support an application for setting aside or non-enforcement of an arbitral award by a party who knows or should know that the statutory arbitration procedures or the chosen arbitration rules have not been followed and who, after being specifically recommended by the arbitral institution or the arbitral tribunal, still participates or continues to participate in the arbitration proceedings without raising any objection, on the ground that the arbitral award has been made in violation of the statutory procedures. On this basis, we define the connotation of “know or should know”, the grasp of “special recommendation”, the application of “failure to object” and “waiver of objection”, and the content and basis of judicial review, to construct a standardized judicial review of objection waivers so as to put the judicial review of objection waiver into a scientific and standardized track.

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