A Study On Theoretical And Practical Legal Aspects Of International Commercial Arbitration Agreements

The past century has witnessed a rapid and worldwide expansion of international commercial transactions. Accordingly, international commercial arbitration, a primary means of commercial dispute resolution, lately enjoys an increasing degree of popularity among the actors involved in international commercial transactions. However, a number of theoretical and practical legal problems arising in this important new field of law still had to be thoroughly analyzed and subsequently solved. Since international commercial arbitration agreements constitute the basis for arbitration procedures once disputes over them arise, as well as for the enforcement of arbitral awards afterwards, these agreements are aptly identified as the foundation and core of international commercial arbitration. The present dissertation focuses on an analysis of their theoretical and practical legal aspects. Relying on prevailing research materials, this study intends to make an in-depth and systematic exploration of pertinent problems arising from commercial arbitration agreements, while comparative analysis and analytical deduction underlie its construction. In addition to more classical issues involved in international commercial arbitration, the present study also pays attention to recently arisen new types of problems. Despite the limited availability of books and other relevant publications and documents, which substantially restricted the prospect of a comprehensive systematic analysis of agreements to which Chinese subjects are parties, the present author hopes that the present study may nonetheless make a valid contribution to both a more profound understanding of the phenomenon of international commercial arbitration and the improvement of arbitration practice in this country. The dissertation comprises 7 Chapters, in addition to an Introduction, totaling over 220,000 words.Chapter 1 deals with the nature of international commercial arbitration agreements, therewith laying the foundation for a better understanding of the pertinent issues involved in implementing these agreements. In order to fully grasp the nature of these agreements, analysis of e.g., the concept of commercial arbitration, the agreements' contents, and their legal characteristics, the validity of arbitration agreement is indispensable. The present study departs from a definition of the terms "international" and "commercial" in a broad sense, so as to pursue a globally valid understanding of the concept of international commercial arbitration agreements. Accordingly, the term "international commercial arbitration" in this study is likewise to be understood in a broad legal and geographical sense, encompassing also e.g., foreign commercial arbitration, domestic commercial arbitration in which foreign elements are involved, commercial arbitration in the regions of Hong Kong, Macao, Taiwan, etc. A better understanding of the nature of commercial arbitration agreements will exert a significant influence on arbitration legislation and related policy-making worldwide, and may be conducive to identifying remedies for breaches of such agreements. The present study tends to support the view that arbitration agreements constitute a special category of substantive agreements by their nature, which offers a theoretical tool to better understand the various issues involved to be discussed in the following Chapters.Chapter 2 presents an analysis of the theoretical and practical aspects of the various elements which constitute a commercial arbitration agreement. By reference to general arbitration theory, this Chapter starts with a profound analysis of the various forms of international commercial arbitration agreements in the light of the New York Convention and other relevant international documents as well as domestic arbitration legislation. By reference to current international trends determining modern arbitration formats, this study prospectively concludes: Thanks to universal recognition of the usefulness of international commercial arbitration agr...