|Article 19 of the Arbitration Law provides that: “In the absence of an agreement on the procedural rules governing the arbitration, the arbitral tribunal shall apply this Law. Where this Law is silent, the arbitral tribunal may adopt the Code of Civil Procedure mutatis mutandis or other rules of procedure which it deems proper.” Upon initial observation, it appears that the above provision furnishes a system of arbitration procedural rules that the parties can easily follow, and grants autonomy to the parties by giving discretion over the procedural rules to be used. However, further examinations reveal that the provision is ambiguous and createds a severe deficiency in the Arbitration Law.
The legislative reasons for Article 19 of the Arbitration Law state that its provision follows the relevant provision of the 1985 UNCITRAL Model Law on International Commercial Arbitration. This article examines the legislative history and purpose of Article 19 of the Arbitration Law, by reference to the relevant UN Model Law provision, combined with a comparative study of the relevant provisions of the arbitration laws of the Germany and Japan, both being civil-law countries like Taiwan. This article also analyzes the problems likely to arise from the implementation of the procedural rules that may be used by the parties as provided in said Article 19, including procedures agreed upon by the parties, procedures provided by the Arbitration Law, procedures provided by the Code of Civil Procedure, and procedures deemed proper by the arbitral tribunal. Furthermore, this article highlights that as a result of the deficiencies of said Article 19, coupled with Article 40 of the Arbitration Law permitting an arbitral award to be revoked on the ground of “arbitral proceedings in violation of laws”, an arbitral award may be subjected to the mercy of court examination through three-levels and three-trials and run contrary to the fundamental spirits of swift proceedings of the arbitration system. In conclusion, this article presents three proposal for consideration-reconstruction of Article 19 of the Arbitration Law, establishment of standard arbitration procedural rules, and reconstruction of the grounds for revoking arbitral awards specified in Article 40 of the Arbitration Law.