兩岸仲裁法制之比較

Comparison of the Arbitration Law of Cross-strait

隨2010年兩岸簽訂ECFA，海峽兩岸之經貿交流日益頻繁，商事爭議益趨複雜，每有爭議發生時若採民事訴訟途徑，恐因兩岸在民事訴訟制度如法院之層級、繫屬及其他程序之落差下而致曠日費時，不若採取相對差距較小之爭議解決手段，亦即以仲裁制度為之；蓋仲裁制度不僅時間上較為縮短，更具有保密性、專業性、國際化可能性等特點，而本文以下將就其立法制度、仲裁人之定位、仲裁範圍及可仲性、仲裁協議、仲裁庭組成、仲裁程序、仲裁的執行與撤銷審查等問題，本於兩岸各自之規定，作一比較性質之研究，建構兩岸仲裁差異，祈使有意西進者或來台投資者或其他相關研究者，更能明白兩岸仲裁之差異，藉以在不同環境中捍衛自身權益，甚至兩岸在仲裁法上予以整合溝通，促使兩岸經貿爭議之解決更加公平、合理與效率。

With ECFA was signed by Taiwan and Mainland China in 2010, the economic and business trade will increase largely in the future, and the business disputes will occur more frequently with complexity. If every business dispute must be resolved by the court procedure, it is time-consuming and costly. Any disputes were settled by the arbitration has the advantages of saving the time and of confidentiality. Also, it is more professional and international than those related to the court procedure. The focus of this paper includes the legislative system of arbitration, arbitrability of the dispute, arbitrator qualifications, arbitration agreement, setting-up of arbitral tribunal, arbitration proceedings, and enforcement and revocation the arbitration award. The arbitration will be analyzed in terms of the provisions of law and legal practices applied to the differences of both sides. Finally, this paper will provide legal opinions to the investors to understand their rights and obligations as their basic data or other researchers in cross-strait commerce and trade. Furthermore, arbitration laws of both sides will be integrated by the exchange of academic and legal practices in order to promote economic corporation so that trade disputes can be resolved with a fair fairer, more reasonable and efficient way.