Research On Legal Issues Of The Extension Of International Commercial Arbitration Agreement To Non-Signatories

With the principle of Party Autonomy being increasingly respected and supported in international community,and arbitration,which has advantages of fairness and efficiency,being increasingly widely accepted and favored,international commercial arbitration has developed to be one of the most important dispute resolution mechanism in decade years.Meanwhile,international commercial arbitration agreement system has also achieved a breakthrough development.There becomes a universal trend that the requirements of written form of arbitration agreement gradually lower.In addition,the theories on extension of arbitration agreement to non-signatories(such as Estoppel,Group of Companies Doctrine and so on)continuously develop.Hence,there becomes more and more situations that making the scope of validity of arbitration agreements expanding to non-signatories.The problem about the extension of arbitration agreement to non-signatories is a subject worthy of deep and inclusive research.But such research is still wanting in the academic circle.Therefore,this dissertation will endeavor to expand and illustrate the reloted aspects systematically and comprehensively,basing on the extension of international commercial arbitration agreement to non-signatories and comparing with the laws in different countries and districts.In the body part of the dissertation,the research is conducted from two scope-the macroscopic view and microscopic view in five chapters.These chapters are arranged in the logical order of the origination of issue of extension of international commercial arbitration agreement to non-signatories,conception,obstacles and breakthroughs,trend of international expansion of written form,theoretical basis,thoughts of integrating China with international rulesThe title of the first chapter of this paper is Concept and Value of the Extension of International Commercial Arbitration Agreement to Non-signatories.This chapter mainly studies the scope of this dissertation,and several basic issues of the extension of international commercial arbitration agreement to non-signatories.There is a significant difference between international arbitration and domestic arbitration.There is no uniform standard of distinction between international arbitration and domestic arbitration at present all over the world.To sum up,it includes three standards:whether the main body of dispute contains international factors,whether the nature of dispute has international factors,and whether the forum contains international factors.The validity of the international commercial arbitration agreement derives from the party's autonomy.The effectiveness of arbitration agreement is mainly embodied into four kinds:the effectiveness of the parties,the effectiveness of the arbitration tribunal,the effectiveness of the court and the effectiveness of the arbitration award.When it comes to the concept,There are many statements on the concept of extension of arbitration agreement to non-signatories.But those statements still have some irrationality to a certain extent.Further.This thesis holds that the extension of arbitration agreement to non-signatories refers to a valid arbitration,in certain circumstance,presumed to contain arbitration willingness of signatories and non-signatories because of non-signatories specific behaviors.Hence,non-signatories are bound by arbitration agreement.Due to the fact that the development of extension of international commercial arbitration to non-signatories still need to face some obstacles,such as the limitation of Doctrine of Privity of Contract,the misunderstandings of Principle of Independence of Arbitration Clause,and the limitation of formal consent and insufficient consent.Therefore,this thesis plans to study and analyse the obstacles above.The dissertation considers that the legislation and practice of modern contract have gradually got rid of the bondage of traditional Doctrine of Privity of Contract.It will develop in the direction of protecting the interest of third party in certain condition.Hence,the development of the exception of privity of contract has become significant theoretical basis of extension of arbitration agreement to non-signatories.Furthermore,arbitration clause is made to ensure that the main contract can be carried out smoothly,and can be resolved in time when dispute arise during the performance of the contract.The assignee should know the arbitration clause contained in the main contract.If assignee does not agree the arbitration clause when in assignment,then assignor and assignee can reach a new appointment in regard with dispute solution.However,if assignee dose not object,then it should be bound by the arbitration clause.Moreover,it seems that the consent of parties to arbitration is insufficient in regard with the extension of arbitration agreement to non-signatories,but right because of the expansion of formal consent and the presumption of implied consent,the consent to arbitration between signatories and non-signatories can be verified,and arbitration agreement can be successfully extended to non-signatories.The title of the second chapter of this paper is Theoretical Basis of Extension of International Commercial Arbitration Agreement to Non-signatories.The theories of extension of international commercial arbitration agreement to non-signatories provide significant theoretical basis when we studying the issue of extension of international commercial arbitration agreement to non-signatories.The dissertation divide these theories into Civil law theory(Estoppel,Fair and reasonable Expectation,Good Faith,Agency,Third Party Beneficiary)and Corporate law theory(Piercing the Corporate,Group of Companies Doctrine).The thesis holds that the theoretical basis of those theories above establishes on parties' consent to arbitrate,which is the broad and presumptive interpretation of the consent between signatories and non-signatories.The measure,to presume parties' implied consent which can be made up for the insufficiency of 'objective consent',shows the positive response of modern arbitration system to the development trend of the diversification of transaction types and the complicated trade structure in international trade.As well,it will also help the long-term development of international commercial arbitration.The above theories have been partially embodied in legislation and practice in China,which can reflect the efforts of Chinese legislation and practice to the extension of arbitration agreement to non-signatories.But in new era,we should more deeply research and take the essence of other theories that have not introduced into our country in order to promote the further improvement and development of our country.The title of the third chapter of this paper is Extension of the written Form of International Commercial Arbitration Agreement.Due to the fact that the requirement of written form of arbitration agreement is of vital importance to the issue of extension of arbitration agreement to non-signatories,the dissertation research and analyse this issue in one chapter.The thesis gives the point that there are some important trends about the arbitration agreement all over the world,which includes the gradual lowering of requirement of written arbitration agreement,the approval of valid arbitration agreement without signature,the accept of validity of implied arbitration agreement,and the increasing recognition of validity of oral arbitration agreement.These trends make written arbitration agreement be expanded gradually.But in contrast,Chinese arbitration related legislation on arbitration agreement form remains more traditional and harsh.Considering this,the new trend of international commercial arbitration agreement system is worth for reference when we plan to revise our legislation.The title of the four chapter of this paper is Consent of Extension of International Commercial Arbitration Agreement to Non-signatories.The development of principal of Party Autonomy has a great influence on the extension of international commercial arbitration agreement to non-signatories,which mainly includes two aspects:first,the written form of arbitration agreement has been expanded continuously;second,there has became many theories on extension of arbitration agreement to non-signatories.These impacts are of great significance to respect and realize parties' willingness to arbitrate,as well to promote the development of international commercial arbitration.The title of the five chapter of this paper is Legal Suggestions on Integration of Chinese Arbitration Agreement System into International Rules.During the past decade years,China has increasing participation in the international economic and trade system,and the economic globalization as well.Additionally,as China's "The Belt and Road" and FTA strategy comprehensively promote the implementation,not only provides a hitherto unknown historical opportunity for the social and economic development to our country,but also make our country's arbitration agreement system,even the arbitration system facing a daunting challenge.Although China's arbitration agreement system is developing and improving rapidly,it still has some defects compared with other countries' mature arbitration agreement system.Therefore,it is necessary to improve our country's arbitration agreement system,which can start from the reconstruction of the form of arbitration agreement,and the establishment and improvement of the system on extension of arbitration agreement to non-signatories in our country,to make sure that Chinese arbitration agreement system can intergrate with international rules,to provide guarantee for improving our arbitration system,help the "going out" enterprises to effectively resolve commercial disputes,and escort China's "The Belt and Road" and FTA strategy.