Research on the Jurisdictional Line between Arbitral and Litigious Powers
|Keywords||Arbitral Jurisdiction Litigious Jurisdiction Jurisdictional Boundary|
Arbitration as a method of disputes settlement has a long history. It arose while litigation appeared and became popular. Both arbitration and litigation constitute primary means in resolving civil and commercial disputes. But legal line between powers of arbitration and of litigation is not clear in theory and hearing practices. Chinese experts in arbitration always focus on adjudicating skills and management of arbitral cases, paying less attention to their jurisdictional limits. The vagueness and obscurity can cause power erosion of law courts into domain of arbitral agency, and vice versa. Ambiguity can also lead to unnecessary repetition of hearing work and waste of dispute settlement resources. Making clear theoretically jurisdictional boundaries is of extreme importance in reducing power conflicts and in increasing efficiency of dispute settlement agencies.At the beginning, this essay introduces history of the line between arbitral and litigious agencies. Then it demonstrates the considerations in line location, such as pursuit of efficiency, respect of parties’will. After that, it analyzes legal rules in dividing adjudication powers, especially those concerning compulsory allotment, arbitration clause effects and arbitration clause autonomy. It also presents some explanations and analyses of concrete background and difficult contexts, and illustrates exceptions to the general dividing rules. Finally, it lists the litigious power that is not affected by jurisdictional allocation.