Document Type : Original Article
Authors
1
PhD student in Private Law, Faculty of Humanities and Law, Isfahan (Khorasgan) Branch, Islamic Azad University, Isfahan, Iran
2
Associate Professor, Department of Law, Faculty of Administrative Sciences and Economics, University of Isfahan, Isfahan, Iran.
3
Assistant Professor, Department of Private Law, Faculty of Humanities and Law, Isfahan (Khorasgan) Branch, Islamic Azad University, Isfahan, Iran
4
Assistant Professor, Department of Private Law, Faculty of Humanities and Law, Isfahan (Khorasgan) Branch, Islamic Azad University, Isfahan, Iran.
Abstract
In arbitration, the parties may raise objections regarding the validity of the original contract, the existence or validity of arbitration agreement, or the competence of arbitrator. In such a situation, the question arises as to which authority is competent to deal with it? In response different laws have different positions depending on whether or not they pay attention to the principles of "independence of the arbitration clause" and "competence de la competence". This research, using a descriptive method, intends to compare the competent authority on the handling of the above objections in arbitration laws of Iran and China. The new laws governing arbitration consider the competent authority to be an arbitrator or an arbitration court. This examination shows that, according to Article 461 of the Civil Procedure Law, judicial authorities are competent to handle Iranian domestic arbitrations. However, according to some interpretations, this article was not in the position of determining the judicial authorities as the competent authority to deal with the above-mentioned objections. Iran's international commercial arbitration law has explicitly assigned the jurisdiction of the arbitrator to deal with aforementioned objections. China's arbitration laws and the regulations of the China International Commercial and Economic Arbitration Commission-CITEC, consider the head of the arbitration organization, people's courts and the arbitration court to be the authority for dealing with aforementioned objections according to the conditions and the subject matter of the objection. As a result, in terms of the different positions of the arbitration laws of Iran and China in determining the competent authority, it is necessary for the parties to identify the competent authority based on the law and regulations governing the arbitration before raising any objection, and then proceed to raise the objection, in order to avoid delaying the proceedings caused by The selection of unqualified authority should be avoided.
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