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2010年起两岸正就ECFA(Economic Cooperation Framework Agreement)后续的子协议有过热烈探讨,包括商务争端解决机制的建构,续行协商。另外,国际贸易全球化时代来临,跨国企业兴起,国际商务急遽增加,纠纷倍增。虽国际商务争议可循国际民事诉讼途径解决,唯程序冗长、旷日费时且伤及和谐,不若国际商务仲裁有经济、迅速、简单、保密及弹性特色,除法律外更引进专家判断,使争议解决更臻公平合理。本文首先介绍国际商务仲裁(InternationalCommercial Arbitration)基本原则,包括当事人自治、仲裁庭独立公正性及法院的保障与监督。其次介绍国际商务仲裁程序法与实体法,前者包括当事人选法、仲裁地法与非当地化理论;后者包括当事人选法及限制、冲突规则及仲裁庭裁量,并对贸易习惯、国际私法、内国法选用与衡平仲裁也有所论述。希盼本文抛砖引玉,为未来两岸建立商务仲裁制度提出建言。
Since 2010, the two sides of the Strait have been discussing enthusiastically subordinate agreements on the follow-up to the Economic Cooperation Framework Agreement (ECFA), including the establishment of a business dispute settlement mechanism and the resumption of negotiations. In addition, the advent of an era of globalization of international trade, the rise of multinational corporations, the upsurge of international business and the multiplication of disputes. Although international business disputes can be resolved through international civil lawsuits, the procedures are lengthy, long and time consuming, and hurt harmony. Unless the international commercial arbitration is characterized by economy, speediness, simplicity, secrecy and flexibility, it also introduces expert judgment in addition to law Dispute resolution is more fair and reasonable. This article first introduces the basic principles of InternationalCommercial Arbitration, including the autonomy of parties, the independence and impartiality of arbitral tribunals and the guarantee and supervision of the courts. Secondly, it introduces the international commercial arbitration procedural law and substantive law, the former includes the parties’ selection of law, the law of arbitration and the theory of non-localization; the latter includes the selection and limitation of parties, the rules of conflict and the discretion of the arbitral tribunal. It also analyzes trade customs, private international law, The selection and arbitration of domestic law are also discussed. Hope this article will start with suggestions for the future establishment of business arbitration system across the Taiwan Strait.