摘要(英) |
The
essence of arbitration is that both parties concerned can have
the principle of autonomy to express their own opinions in order
to solve their disputes. Therefore, the appointment system must
be a fair, reasonable, impartial and transparent system that
shall be approved and accepted by both parties. Only if a
complete arbitrator appointment system is established, there
will be less controversial issues in the actual promotion of the
Arbitration Law and both parties concerned will get a legal and
reasonable result which they both agree with.
According to the existing Arbitration Law, both parties
concerned shall appoint an arbitrator respectively. In the
practical cases, it is easy for the arbitrator to be in a state
of regarding himself/herself as an attorney of the appointer.
Thus, in a court of arbitration, it is easier for the arbitrator
to defend his/her appointer and even to take sides with such
party concerned, making the determination of the arbitrator hard
to convince both parties. Consequently, the problem about the
arbitrator in the character of an attorney is a key issue for
the arbitrator appointment system. Furthermore, for the
practical case of engineering arbitration, the arbitrators will
be unfamiliar with the engineering practices or the professional
authentication report so as to influence their determinations,
which are also hard to convince people, if they are deficient in
professional engineering-related abilities. Therefore, with a
study on the arbitrator appointment system from the viewpoint of
construction engineering, this article expects to provide the
research result to solve engineering-related disputes and to
promote the reliability of domestic engineering arbitration.
According to the Article 31 of Arbitration Law, “If expressly
authorized by the parties, the arbitral tribunal may apply the
rules of equity to determine the arbitral award”, the arbitrator
must find there would be unfair result in the actual situation
if based on the strict laws and regulations and then tell the
parties concerned about it when both parties have disputes. With
the consensual authorization of both parties concerned, the
arbitrator can change to adopt the amiable composition as
his/her determination basis. However, there are still doubts if
the arbitrator could really abandon “the Principle of Good
Faith” or “the Legal Principle” to make a fair and reasonable
determination.And for general arbitrators, most of them cannot
necessarily understand the real meaning of amiable composition.
Therefore, for those arbitrators without the legal backgrounds,
they cannot make a fair and reasonable determination if they are
not very clear about the law and its application. This research
thinks that the amiable composition is not to deny the
reasonable determination made by laws because of legal
relativity but is just to be aimed at the characteristics of
construction engineering arbitration and to avoid from blurring
objective factors existed in the engineering disputes because of
subjective and definite regulations to make the arbitrator be
able to make a fair and impartial determination based on a fair
and reasonable orientation.
The Legislative Yuan has approved the amendatory act of Article
85-1 of Procurement Law on June 8, 2007 as below: “When an
enterprise submits a dispute to arbitration, the agency shall
not refuse it”. According to such amendatory act, although the
enterprise can submit a dispute to “Compulsory Arbitration”,
this research thinks that it is still unable to effectively
promote the justice of arbitration system and also cannot make
both parties concerned approve the arbitration system and obey
the determination if the arbitrator appointment system couldn’t
be improved. In order to achieve the target of integrating the
appointment system of engineering arbitrators and promoting the
quality of arbitration, this research result suggests that for
the qualification of a chief engineering arbitrator, this
research claims to appoint a person with legal backgrounds and
engineering specialties to serve an arbitrator to judge and
arbitrate a dispute. This research also suggests that it is
necessary establish an arbitrator evaluation and elimination
system to avoid from any doubts of the parties concerned about
the arbitration system because of a few unfair arbitration
determinations. In addition, this research suggests to establish
a complete name list of and professional backgrounds arbitrators
and to adopt a method of random selection by system
classification to appoint an arbitrator who is suitable for such
arbitration case to avoid from the occurrence of an arbitrator
as an attorney. |