On the application of the Arbitration Law in online arbitration

I. The origin of the problem

Online arbitration is essentially the network operation state of arbitration, and since it has not divorced from the fundamental connotation of arbitration, it still meets the basic requirements of various elements of arbitration.

The so-called Online Arbitration originated in the United States, and English is online arbitration, which mainly refers to the use of modern internet to complete all the main links in traditional arbitration. That is, from the starting point of arbitration, the conclusion of arbitration agreement relies on the internet, and it is clearly stipulated that both parties agree to conduct arbitration online in case of dispute. Once a commercial transaction dispute occurs, both parties to the dispute will submit the electronic arbitration application to the designated online arbitration institution according to the arbitration agreement, and the arbitration institution will complete the case acceptance and trial on the Internet and make the final arbitration award. This convenient and quick arbitration method has been widely recognized, because both parties and arbitrators need not face to face directly, but can complete all arbitration links through virtual network, saving a lot of economic and time costs, and arbitrators are either recognized and selected by both parties or randomly selected from the network database, thus greatly reducing the arbitrariness of arbitrators and enabling them to make a fair ruling.

because online arbitration is the networking of traditional arbitration methods, the spirit of the law has not deviated from the legal requirements of the Arbitration Law of the People's Republic of China (hereinafter referred to as the Arbitration Law). However, the application of online arbitration in China's commercial transactions has not yet reached a universal state, which is caused by technical factors.

ii. problems existing in the application of the arbitration law to online arbitration in China

from the concept of online arbitration, it can be seen that online arbitration can solve disputes quickly and economically, especially it can provide great convenience for the parties and meet the requirements of the network environment. However, from all aspects and procedures of online arbitration, there are technical problems in the application of arbitration law to varying degrees.

(I) Written issues of online arbitration agreement

According to the Arbitration Law, "an arbitration agreement includes arbitration clauses in a contract and requests reached in other written forms before or after a dispute occurs", according to the Arbitration Law, an arbitration agreement must be established in writing, and there is a paradox between the written issues here and the online arbitration agreement. The online arbitration application submitted also involves the problem of inconsistency with paper writing.

after the online hearing, the arbitration tribunal makes an award based on the opinions of the majority of arbitrators. The award must be accompanied by the electronic signature of the arbitrator, transmitted to both parties by encrypted mail, and stored in the special website of the case and kept in the electronic file database of the arbitration institution. The result of the award shall be made public unless one party objects, and both parties shall be required to abide by it. However, according to the provisions of the Arbitration Law, the arbitration award should be in written form, which is also the main basis for the parties to the dispute to conduct litigation.

for this reason, the main contradiction between the provisions of the Arbitration Law and online arbitration lies in whether the electronic agreement in non-written form is valid. This problem directly affects the legality of the basis of online arbitration. If this problem is not solved, China's arbitration law cannot be really applied to online arbitration.

(II) Legitimacy of online arbitration institutions

According to the provisions of the Arbitration Law, arbitration committees are generally not set up step by step according to administrative divisions, but after all, there are permanent entities in their places. However, online arbitration makes the arbitration institution virtual, which leads to conflict with the issue of the entity residence stipulated in the Arbitration Law that the arbitration institution "has its own name, domicile and articles of association", thus causing a series of problems. In addition, although according to the Arbitration Law, arbitration institutions are not set up step by step according to administrative divisions, after all, there is a regional difference in arbitration. However, online arbitration is based on the virtuality of the network and has no geographical restrictions. In the process of acceptance, there is only the distinction of case categories, but no geographical restrictions. Whether the acceptance of such cases and the arbitration results are effective or not is debatable.

(III) Qualification of arbitrators in online arbitration institutions

China's Arbitration Law stipulates that "the Arbitration Commission shall appoint arbitrators from fair and decent people" and requires arbitrators to have profound legal knowledge and experience in law-related trade. Generally, those who meet this requirement are relatively older. Such arbitrators do play a vital role in traditional arbitration, but online arbitration, as a new arbitration method, will encounter many problems, such as computer and network technical problems, which will test the knowledge reserve and technical ability of former arbitrators.

(IV) Legal effect of electronic evidence in online trial and cross-examination

During online trial, the arbitration tribunal may decide to hold an online hearing, and use multimedia technology to hold a hearing through online teleconference or audio-video system. Online trial requires all parties involved in the case to have corresponding technical equipment. China's "Arbitration Law" stipulates that "the parties should provide evidence for their own claims". Because both parties to the dispute submit evidence online, some traditional physical evidence must be converted into digital methods: for example, traditional documentary evidence and physical evidence should be converted into audio or video, and whether such self-provided audio and video materials can have legal effect. In addition, "Arbitration Law" stipulates: "If the arbitration tribunal deems it necessary to appraise specialized issues, it may submit them to the appraisal department agreed by the parties or the appraisal department designated by the arbitration tribunal." Whether the identification of intangible objects is consistent with the traditional identification, and if so, whether it conflicts with the traditional legal provisions.

iii. legal solutions to the problems existing in online arbitration in China

(1) It is clearly recognized in the Arbitration Law that electronic documents and electronic signatures have legal effect

Giving electronic agreements in non-written form the same legal effect as written documents is the most basic method to solve the main basic contradiction between the provisions of the Arbitration Law and online arbitration. The Electronic Signature Law of the People's Republic of China, which was implemented in 25, gives legal effect to data messages and electronic signatures, and the Supreme People's Court's "Regulations on the Application of <: Arbitration Law of the People's Republic of China >: The "other written forms" identified in the Interpretation of Several Issues include data messages (including telegrams, telexes, faxes, electronic data interchange and emails), which basically solves this problem. However, with the continuous development and progress of society, the written problems of online arbitration agreements will encounter new ways such as data messages. Therefore, the Arbitration Law should confirm that the signature generated by the new electronic method has the same legal effect as the document, and fundamentally solve the problem that the written document has the same legal effect as the electronic document.

(II) Giving online arbitration institutions the same legal status as traditional arbitration institutions

Although online arbitration institutions have no entity, they are no different from entity institutions in terms of organization setup and personnel composition. Therefore, in order to popularize online arbitration, a new arbitration method, we should revise the relevant provisions on arbitration institutions in the Arbitration Law and expand the explanation on the domicile of arbitration institutions "having their own name, domicile and articles of association". As long as it does not violate the establishment provisions and basic purposes of arbitration institutions, virtual arbitration tribunals and substantive arbitration tribunals will have the same legal status. And the virtual arbitration tribunal and the entity arbitration tribunal give the same legal effect to the arbitration result of the case.

(III) Propose corresponding standards for the qualifications of arbitrators in online arbitration institutions

In addition to the profound basic legal skills and experience requirements for legal work and related trade work that traditional arbitrators have, arbitrators in online arbitration should also add assessment requirements for arbitrators' network and computer capabilities and levels. Such as computer proficiency test, network operation level test, and all kinds of level tests involving transaction technology that appear in e-commerce transactions under the new situation, etc., so that online arbitrators can adapt to online arbitration, a new arbitration method, and can use professional knowledge and computer and network skills to solve technical problems encountered in various arbitration cases in practice.

(IV) Amending the relevant provisions on electronic evidence

To solve the legal effect of electronic evidence in online arbitration trial and cross-examination, it is necessary to amend the Arbitration Law and cooperate with relevant laws and regulations. According to the electronic signature law and related regulations, electronic evidence is given corresponding legal status, but it is not clear in the arbitration law. In order to strengthen the legal effect of electronic evidence to meet the needs of the development of online arbitration, the Arbitration Law must be amended to give legal status to electronic audio and video evidence transformed from traditional physical methods.

in addition, the traditional arbitration adopts the principle of "one award is final", which is mainly based on the economic cost and time cost of the parties and the arbitration tribunal. Once the award is made and takes effect, it will not be accepted if both disputing parties file an arbitration on the same dispute. Because of the low cost of online arbitration, both parties to the dispute tend to choose online arbitration, and once the restrictions on the establishment of arbitration institutions are reduced, it will inevitably lead to a large number of arbitration institutions, so the final award will also be improved. Both parties to the dispute can choose different arbitrators of an online arbitration institution to arbitrate the same case, or choose different arbitration institutions to arbitrate the same case, and obtain satisfactory arbitration results for both parties. ;