发布时间： 2019-4-15 供稿人：马骁潇
在商事仲裁实践中，基于各国仲裁法律体系对当事人意思自治原则的接受程度不同，一个仲裁庭的组成人数或也会有所差异。我国《仲裁法》第 30 条系关于仲裁庭组成人数的规定，笔者拟结合实际工作经验就此问题与读者分享一些看法。
《仲裁法》第 30 条规定，仲裁庭可以由三名或一名仲裁员组成。在此前提下，国内主要仲裁机构的仲裁规则多规定如当事人无特别约定，按照案件争议金额决定仲裁庭人数是一人或三人。
但是否可以约定其他数量仲裁员组成一个仲裁庭呢？有观点认为，《仲裁法》第 30 条为法律强制性规定，仲裁庭人数只能够在一人或者三人中进行选择，否则会因违反法律的强制性规定而无效。也有观点认为此条款属于法律的任意性规定，可以被当事人意思自治所突破。
实践中，当事人对于仲裁庭的组成方式进行特别约定（如约定由双方选定的仲裁员共同选定案件首席仲裁员、抽签选定仲裁员等情形），也与《仲裁法》第 31 条中关于仲裁庭组成方式的规定存在不一致，但仍在实践中被普遍认可。笔者认为，《仲裁庭》第 30 条关于仲裁员人数的规定与《仲裁法》第 31 条关于仲裁庭组成方式在本质上均属于当事人对于仲裁庭组成过程中意思自治行使方式的体现，不应区别对待。
同时，基于仲裁案件审理过程中可能出现特定情形，亦有仲裁机构的仲裁规则对于更多形式的仲裁庭组成人数进行了探索和尝试，以期最大限度保护当事人的权益，使仲裁的优势得以充分发挥。例如，北仲仲裁规则第 45 条规定：“最后一次开庭终结后，如三人仲裁庭中的一名仲裁员因死亡或其他原因不能参加合议并作出裁决，主任可以按照规则的规定更换仲裁员；在征得各方当事人及主任同意后，其他两名仲裁员也可以继续进行仲裁程序，作出决定或裁决。”
综上，笔者建议，在未来《仲裁法》的修改过程中，或可以讨论调整现行《仲裁法》第 30 条的规定，将当事人意思自治原则明确纳入，允许当事人约定仲裁庭的人数，但规定在仲裁庭首次组成之时必须为奇数。同时，为了便于实践中仲裁机构具体推进案件，在当事人无特别约定的情况下，仲裁庭的组成人数可以为一人或三人，具体根据当事人所选定的仲裁机构的仲裁规则进行。
How many arbitrators do you need in mainland China?
In the practice of commercial arbitration, the number of arbitrators may vary depending on the degree of acceptance of a legal system treating the principle of party autonomy. Article 30 of the Arbitration Law regulates the composition of arbitration tribu nals, and the author addresses this in light of her practice at the BAC/BIAC.
Article 30 of the Arbitration Law provides that the arbitration tribunal may consist of either one arbitrator or three arbitrators. In addition, most of the arbitration rules of Chinese arbitration institutions specify that, in the absence of any special agreement between the parties, the number of arbitrators should be one or three, according to the amount in dispute. In practice, if the parties have special agree ments on the number of arbitrators or the way the arbitration tribunal is formed, the arbitration institutions will generally respect the contractual stipulations and make corre sponding adjustments to the arbitration fees charged at the time of filing the case.
The reason for a special agreement may vary. For a higher-value case, but one that is less complicated, or for cases of the same type of subject matter, having one arbitra tor may help save on arbitration costs and, to the maximum extent, realize the needs for efficiency. For a smaller-value case, but one that is fairly complicated, three arbitra tors may reduce the possibility of personal bias or a wrong judgment. Arbitrators from different professions or backgrounds will help realize the fairness in a justifiable award through deliberation, co-operation and perspective contribution.
But can parties agree on another number of arbitrators to form an arbitral tribunal? It has been argued that article 30 of the Arbitration Law is a mandatory provision, as the number of arbitrators can only be one or three. It would otherwise be invalid if the parties’ agreement violates article 30. Others argue that article 30 is a discretionary stipu lation, and parties’ agreement overrides it.
The author believes article 30 is discre tionary, and should not be the restriction of parties’ autonomy. Three reasons for this are: (1) article 30 does not involve the jurisdiction of arbitration, or validity of arbitration agreement, which may leave the power for these at legislative discretion. It is an item that may be agreed by the par ties; (2) The wording of article 30 is “may” rather than “shall”; and (3) in practice, the parties may agree on the composition of the arbitral tribunal in various forms. For example, parties may agree that the presiding arbitrator must be jointly selected by two parties’ nominated arbitrators, or a lucky draw of arbitrators, etc.
Such an agreement is inconsistent with the provisions of article 31 of the Arbitra tion Law on the composition process of the arbitral tribunal, but is generally accepted in practice. The author argues that the provi sion on the number of arbitrators as specified in article 30 and the provision on the form of arbitral tribunal as specified in article 31 are essentially embodiments of parties’ autonomy, and should not be treated differently. Considering often extreme circumstances in practice, arbitration institutions may well explore more possibilities in these matters. The innovative arbitration rules in this re gard will protect the trust that parties place on arbitration and realize the advantages of the arbitration mechanism.
For example, article 45 of the BAC/BIAC Arbitration Rules provides that “in the event that, after the conclusion of the last hearing, an arbitrator on a three-member arbitral tribunal is unable to participate in the deliberation and render an award as a result of his or her death, or for other reasons, the chairman may replace that arbitrator with a substitute arbitrator. Alternatively, provided that the parties consent, and with the approval of the chair man, the two remaining arbitrators may continue the arbitration proceedings and make decisions, or an award.”
Different numbers of arbitrators reflects the flexibility of the arbitration procedure. Either parties’ autonomy or innovation with the rules will prevail as long as it is helpful in realizing efficiency of the procedure and fair ness of the outcome. This is the distinguish ing feature of arbitration from litigation.
A further question could be, can we have an even number of arbitrators? In the given framework of the Arbitration Law, there is no mechanism for courts to make a determination where a procedure impasse occurs. Certain jurisdictions have laws, like the British Arbitration Act 1996, that stipulate an umpire can handle an even number deadlock. However, this is impossible in China, as is fostering new consensus between disputing parties, and thus unwanted delays are caused.
To sum up, the author suggests that, in the ongoing discussion of the Arbitration Law, the revision of article 30 will feature. It is better to explicitly make it a discretionary rule by allowing parties autonomy in word ing and, if necessary, to make it clear that the number must be odd at the time of the first composition of the arbitration tribunal.
Meanwhile, in order to allow necessary innovation, the wording could be read as fol lows: In the absence of a special agreement between the parties, an arbitration tribu nal may comprise three arbitrators or one arbitrator, unless the arbitration rules of the selected arbitration institution say otherwise.
Ma Xiaoxiao is a case manager at Beijing Arbitration Commission/Beijing International Arbitration Centre (BAC/BIAC)