论仲裁的性质及与服务贸易总协定之关系

早期的仲裁是纯粹的私力救济;以后仲裁为国家法律所承认,并由国家强制力对仲裁裁决的可执行性进行保证.对于仲裁的性质,主要有四种不同的学说,它们各有所长,但都存在不足之处.现代仲裁是政治国家与市民社会合作的产物.仲裁服务具有公共服务的性质,不应将仲裁服务归入私人商业服务.仲裁服务与律师法律服务也存在明显的区别.根据WTO《服务贸易总协定》和中国《入世议定书》,中国政府没有开放仲裁服务的国际义务.

On the Nature of Arbitration and the Relationship Between Arbitration and GATS

Early arbitration was a kind of pure self-help remedy.Later,arbitration was supported by national law and the arbitration award was enforceable.There are four kinds of theories on the nature of arbitration.They have their merits as well as shortcomings.Arbitration has the nature of public service and does not belong to private commercial service.Arbitration service is different from lawyer's legal service.According to GATS and WTO's Protocol on the Accession of the PRC,China doesn't have the international obligation of opening arbitration service.