Differences between Arbitration and Civil litigation for Solving Dispute
Author of this article: attorney of Win and Win Law Firm
1. Compared with civil litigation, arbitration has the following differences
a) Arbitration institutions are different from people’s courts in nature. Arbitration is civil, based on the voluntary choice of the parties. The arbitration institution in China is the Arbitration Commission, which belongs to non-governmental organizations. The arbitrators are appointed among legal experts, economic experts and technical personnel. The parties can choose the arbitration institution and arbitrators by themselves. The people’s courts exercise judicial and executive power in accordance with the rights conferred by the constitution. Judges are appointed by the organs of state power, and the parties cannot choose courts and judges themselves.
b) The preconditions of accepting cases are different. Arbitration can only accept contract disputes and other property rights disputes between citizens, legal persons and other organizations with equal subjects, while the court can accept all kinds of disputes. Arbitration is limited to contract disputes and other property rights disputes. The premise of accepting a case must be that both parties have signed a written arbitration clause or agreement, otherwise, the arbitration institution has no right to accept it. The jurisdiction of the people’s court to accept civil litigation cases directly comes from the provisions of the law. The scope of acceptance of civil cases is not limited to contract disputes and property rights and interests disputes, but also includes personal rights disputes, labor disputes, etc. there is no need for the parties to conclude an agreement on jurisdiction.
c) The complexity of the procedure is different from the trial time. The procedure of arbitration generally goes through several stages, such as application and acceptance, composition of arbitration tribunal and award. The procedure is simple and the trial time is short, while the civil procedure is strict and complete. The civil procedure includes the ordinary procedure of the first instance, the summary procedure, the special procedure of the second instance, the trial supervision procedure, the supervision procedure, the public notice procedure, the execution procedure and the foreign-related civil procedure. The civil procedure stipulates that the trial time limit of the first instance is six months and that of the second instance is three months, which is a long trial time. Arbitration is a final arbitration system. When applying for cancellation, the court generally does not review the entity. If there is an obvious error in the procedure, it can be cancelled; If the lawsuit is not satisfied with the first instance, it can also appeal, and if it is not satisfied with the second instance, it can apply for retrial within two years.
d) There are different sources of people trying cases. The source of arbitrators is legal experts, economic experts and technical personnel. For some highly professional cases, these experts have more professional knowledge. The judges of the court are appointed by the organs of state power and have legal knowledge and judicial experience, but they are not experts in a certain economic and technical specialty.
e) The coercive force of arbitration institutions is different from that of people’s courts. The arbitration tribunal cannot directly take property preservation and evidence preservation measures against the parties, nor does it have the right to enforce them. These must apply to the court for decision and enforcement. As a national judicial organ, the court may carry out property preservation and evidence preservation according to law, and has the power of compulsory execution.
2. Compared with civil litigation, the advantages of arbitration are as follows:
a) The arbitration procedure is fast, convenient and efficient. After a civil dispute, any party hopes to get a fair ruling in a short time, and is unwilling to invest too much time and energy in litigation. Arbitration has obvious advantages in efficiency.
b) The arbitration shall be subject to the final decision of one instance, which shall take effect immediately after the award. The civil litigation shall be subject to the final judgment of the second instance. The appeal procedure of the parties against the judgment of the first instance still needs a long time.
c) The parties may voluntarily choose arbitration as a means of dispute resolution. Only when both parties agree and choose arbitration can the case be submitted to the Arbitration Commission. The expression of intention that both parties agree to submit to the Arbitration Commission also shows the parties’ trust in the arbitration institution, which is conducive to the implementation of the arbitration award.
d) Arbitration does not implement level jurisdiction and regional jurisdiction, and there is no subordinate relationship between arbitration institutions, so the parties can choose any arbitration institution they trust.
e) The parties may choose their own arbitrators, and choose the arbitrators they trust according to their experience, experience, professional title, reputation and other factors.
f) The appointment standard of arbitrators is high, and most of them are professionals, which is conducive to ensuring the quality of the award.
3. Compared with civil litigation, arbitration also has the following defects.
a) While the arbitration procedure is simple, it loses the supervisory role of the second instance, and the parties lose the leeway to further claim their rights.
b) In the process of arbitration and after the award is made, the coercive force of the arbitration institution is limited, which is weaker than that of the court judgment, resulting in the parties’ doubt about the effectiveness of the award.
c) After comparing arbitration with civil litigation, it can be seen that the arbitration system has many advantages such as faster, more economic and more professional than the civil litigation system, while the civil litigation system has the advantages of perfect procedure, more authoritative judgment and more legal force.