國內商事仲裁裁決司法化問題研究

Abstract

Commercial arbitration has gained significant prominence within the domestic multi-dispute resolution system in recent years in dispute resolution in China. Concurrently, the judicialization of domestic commercial arbitration awards has become a focal point of concern among both theorists and practitioners. Although existing studies predominantly critique the excessive judicialization of arbitration awards, comprehensive empirical analyses and systematic theoretical research are scarce. This dissertation addresses this gap by establishing, for the first time, a comparative database of arbitration and litigation awards, and conducting an empirical analysis to thoroughly examine the judicialization phenomenon and its detrimental effects. It also systematically investigates the application of law in domestic commercial arbitration and introduces the theory of ‘ arbitral autonomy under the constraints of mandatory law ’ , which asserts that arbitrators can independently choose the basis for judgment and adjudication methods, provided they do not violate essential mandatory legal provisions, thereby fully expressing the unique characteristics of arbitration and ensuring fair resolution of commercial disputes. The dissertation further delineates the differences between arbitration and litigation regarding adjudicative philosophy, basis for rendering, and specific adjudicative methods. It provides a clear depiction of arbitration awards distinct from the judiciary-dominated legal framework, thereby addressing the current lack of systematic research on domestic commercial arbitration award methods and promoting the development of an arbitration system which suits China ’s legal culture and business realities.

Date of Award	23 May 2025
Original language	Chinese (Simplified)
Awarding Institution	City University of Hong Kong
Supervisor	Jiangyu WANG (Supervisor)