試論商事仲裁自裁管轄權的現狀與中國的改進

Exploring the Present Competence-Competence of Commercial Arbitration and the Improvements China

法院與仲裁庭在決定仲裁庭管轄權方面如何分工，仲裁庭是否具有決定自身管轄權的權力，這是長期以來在仲裁理論與實踐中不斷爭論的問題，尤其是在中國。本文從分析仲裁庭自裁管轄權的概念及分類、法律淵源、仲裁的三個階段入手，總結概括國際上廣泛通行的理念與做法。同時，結合中國立法與實踐，以《聯合國國際貿易法委員會仲裁示範法》為模本提出改進設想，以促進仲裁為“一帶一路”發展戰略服務，提高中國仲裁在國際上的公信力。文章集中論述仲裁管轄權，在闡述商事仲裁管轄權分類、釋明積極與消極自裁管轄權、仲裁三段性，主張中國應採取積極自裁管轄權機制方面，具有一定的特點和創新。 It is a long controversial issue in arbitration theory and practice in China on the allocation of rights and work in determining the arbitral jurisdiction between national courts and the arbitral tribunals, an issue whether the arbitral tribunal has competence to decide its own jurisdiction. This article starts from the introduction of the concept of competence-competence, analyses its classification-positive effects of competence-competence and negative effects of competence-competence and the sources of arbitral tribunal's powers. It also introduces the three stages, the prevailing theory and practice in the world of court-arbitration. In the meantime, the article also in light of the Chinese legislation and judicial interpretations and arbitration practice, elaborates the evolution ideas based on the international uniform arbitration law and rules, so that the Chinese arbitration will act as means to serve China's Belt and Road Initiative. Creative and evolutionary proposals are involved in this paper on the issue of arbitral jurisdiction by focusing solely on the competence-competence, elaborating the court-arbitration three stages and positive/negative effects of competence-competence.

It is a long controversial issue in arbitration theory and practice in China on the allocation of rights and work in determining the arbitral jurisdiction between national courts and the arbitral tribunals, an issue whether the arbitral tribunal has competence to decide its own jurisdiction. This article starts from the introduction of the concept of competence-competence, analyses its classification-positive effects of competence-competence and negative effects of competence-competence and the sources of arbitral tribunal's powers. It also introduces the three stages, the prevailing theory and practice in the world of court-arbitration. In the meantime, the article also in light of the Chinese legislation and judicial interpretations and arbitration practice, elaborates the evolution ideas based on the international uniform arbitration law and rules, so that the Chinese arbitration will act as means to serve China's Belt and Road Initiative. Creative and evolutionary proposals are involved in this paper on the issue of arbitral jurisdiction by focusing solely on the competence-competence, elaborating the court-arbitration three stages and positive/negative effects of competence-competence.