| Summary: | 碩士 === 朝陽科技大學 === 營建工程系碩士班 === 95 === 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.
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