The Study of the Relationship between Illegality and International Commercial Arbitration with a Focus on China - Research Proposal Example

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This paper is to study the relationship between illegality and international commercial arbitration with a focus on China. The aim of this research is to identify the key elements of the Chinese and global legal systems that determines the balance between corruption and the use of arbitration. …
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The Study of the Relationship between Illegality and International Commercial Arbitration with a Focus on China
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Download file to see previous pages The focus in this paper is on arbitration, a specially established mechanism for the final and binding determination of disputes concerning a contractual or or other relationship by independent arbitrators in accordance with procedures, structures and substantive legal or non-legal standards chosen directly in indirectly by the parties. The purpose of Arbitration is to obtain a final and binding ruling in a given case. This means that Arbitration involves the situation where two people agree to either consciously or unconsciously to use Arbitration as a method of resolving disputes that would crop up between them in a legal relationship. In other words, Arbitration involves a form of consensus that allows two parties to present their cases to an Arbitration Tribunal as and when the need comes up. Thus, it can be inferred that Arbitration is generally a situation of choice rather than an obligation. This means that Arbitration is a voluntary option rather than a compulsory one. In comparison to the default position, disagreements between parties in a legal relationship are often referred to the court and handled by the legal jurisdiction of the area in question. However, an Arbitration clause effectively excludes the courts from the resolution of conflicts in the legal relationship. In this context, the ruling of an Arbitration tribunal is of the same value as the courts of the land. Arbitration is a popular means of settling disputes in international business. (Buhring-Uhle, 2006). Arbitration is often a preferred way of resolving disputes in the international context because of the lack of a definite unified legal jurisdiction for parties with different origins (Park, 2006). This therefore means that Arbitration is used as a system of best practices in a situation where there is no clearcut legal method to solve disputes across borders. Chinese businesses rely heavily on Arbitration around the world. This is attributed to the global expansion drive of the Chinese government which is done through various trading agglomerations in different parts of the world (Tao, 2008). China also maintains a thriving system of Arbitration which runs parallel with the legal system and supports the huge global trading structures in China today (Association of International Arbitration, 2009). 1.1 Legal Scope of Arbitration Arbitration is often viewed as an alternative dispute resolution system (Fox 2009). This is because decisions by Arbitration tribunals are immune from court interference. Fox however identifies that the courts interact with the decisions of Arbitrators in a very complex manner around the world (2009). He states four main situations in which the court could intervene with Arbitration around the globe: 1. A breach of a ruling of the court of Arbitration could be referred to a traditional court for redress. 2. The court could be called in to compel the other side of the case to engage in arbitration if they refuse to do so. 3. The court could force the losing party to abide by the ruling of the court of Arbitration. 4. The traditional courts can pronounce injunctions and other statutes that will become binding in Arbitration cases. The first three pointers indicate that Arbitration systems around the world form a component of the larger justice system. This means that Arbitration systems are fairly independent of the traditional courts and have a unique system that forms a part of the broader legal context. This implies that the Arbitration system is an essential part of the legal system that parties elect to utilise instead of civil or criminal courts. Thus, the Arbitration courts are independent and of an equal standing as some other courts and legal authorities. However, the fourth point indicates that the Arbitr ...Download file to see next pagesRead More
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