18 avril 2011: Madame Kun Fan

Madame Kun Fan soutiendra, en vue de l'obtention du grade de docteur en droit, sa thèse intitulée:

« The Law and Practice of international commercial arbitration in China measured by transnational standards_A Cultural, Sociological, Economic, and Political Analysis »

Lundi 18 avril 2011 – 9h.00
Salle M3050 - UNI MAIL

La séance est publique.

Résumé:

As international business becomes increasingly global and less country-specific, there is a strong movement towards harmonization of arbitration. In this context of harmonization, to what extent is Western and Chinese legal histories still influential to their modern practice? Contrary to the Western legal tradition which is significantly based on private law such as jus civile in ancient Roman law and the “law merchant” in Europe, the Chinese approach of dispute resolution is influenced, to a great extent, by the Confucian philosophy that emphasizes harmony and conflict avoidance. Now that China’s legal system has evolved, how does this non-confrontational culture influence the law and practice of arbitration in modern China?

Furthermore, in the new era of globalization, the non-Western countries play an increasingly important role in the international commercial and financial markets. How will the new economic players react to this movement of harmonization? China again, serves as a good example in this regard. Is China showing signs of adaptation to the current trend of transnational arbitration? On the other hand, will the Chinese legal culture and practice influence the practice of arbitration in the rest of the world?

To answer these questions, this thesis will start from the contemporary practice, by giving a thorough examination of the arbitration system in China, in terms of the law as it is provided in the statutes and the actual practice in Chinese arbitration institutions and Chinese courts, to highlight the unique features and the legal obstacles of arbitration in China measured by transnational standards. Further, the thesis will analyze the reasons of these “Chinese characteristics” and obstacles from a historical point of view, by examining the cultural, political, economic and sociological impacts on the contemporary arbitration practice in China. Finally, the author attempts to foresee how China will react to the movement of transnational arbitration, or in the other direction, what impacts China may have on the arbitration law and practice elsewhere.