The Legal Nature of Electronic Commercial Arbitration: A Comparative Study of International Legal Systems
摘要
This chapter reviews the legal nature of electronic commercial arbitration and its features, along with summarizing the different legal views about this type of arbitration. It critiques major theories of this regard, such as the judicial theory that considers the arbitrator as a private judge who exercises judicial power similarly to a judge in a regular court and the contractual theory that regards arbitration as a contractual provision between parties, placing the arbitrator as an independent third party within this contractual relationship. The mixed theory was explored since it combines both the contractual and judicial aspects of arbitration, making it more effective in dispensing justice. The importance of the New York Convention is, therefore, necessary to be underlined as it has helped in the recognition and enforcement of international commercial arbitration awards which further adds to the efficiency of arbitration in cross-border dispute settlement. The study ended with some points of note, especially that variability of the legal nature of electronic commercial arbitration in different jurisdictions poses challenges to the harmonization efforts with respect to rules and regulations governing this form of arbitration. Another point noted is the role of electronic commercial arbitration in settling international disputes, which is backed by international agreements with provisions for the enforcement of arbitration awards across borders.