Study On The Independence Of Arbitration Clause Of International Commercial Arbitration

The independence of arbitration clause is one of the basic doctrine of arbitration with continuous development demand of modern international economic trade and commercial arbitration to be created.Nowadays the doctrine has been generally accepted by legislative, judicial and arbitration circle all over the world, and be widely used in arbitration practice. However, although in appearance this principle has wide application in almost countries, but the task is not finished. The independence of arbitration clause now in all aspects of its content are still need improvement. For example, for its name, there is no uniform name between two legal systems, the value orientation behind this phenomenon has the effect can not be ignored. Another example, although the independence of arbitration clause has been established, but its legal justification does not get comprehensive demonstration, and it results different application of the independence of arbitration clause. The solving of these issue are very important in theory and practice, since the arbitration agreement is the premise to the arbitration naming the cornerstone of arbitration, no arbitration agreement and no arbitration procedure to start, and the validity of the arbitration clause are depend on the maintenance of independent arbitration clause, so the independence of arbitration clause has important significance to study. The existence of unsolving issues means that it is necessary to continue the discussion on the subject, therefore, this thesis attempts to integrate prior knowledge and clarify the existing problems, to explore the pattern of the application of the independence of arbitration clause and provide more reasonable legislative suggestions.In the structure arrangement, apart from the preface, the text is divided into five chapters.Chapter 1: About the theory and basis of independence of arbitration clause. This chapter is devoted to the study theory of independence of arbitration clause and its basis. The first section of this chapter compares the three terms between autonomy, separability and independence of arbitration clause, clarifying their implied meaning and the possible influence. The seperability implied arbitration clause in the main contract still have great attachment to the main contract, and the autonomy of arbitration clause reflects another extreme tendency to international commercial arbitration from the domestic legal regulation, and reasonable development of as much as possible to preserve the independence of arbitration clauses, so, this paper argues that the term— independence of arbitration clause —is more appropriate. The second section elaborates on the basis of the independence of the arbitration clause. From the traditional point of view, independence of arbitration clause defects in logic, therefore, the theoretical basis of the independence of the arbitration clause shall be re-discussed. This article proves the rationality of the independence of arbitration clause from three aspects—jurisprudence basis, philosophical basis and institutional guidelines. The article introduces and evaluates ideas based on traditional view: the arbitration agreement is parallel with the other provisions of the contract in the contract, constituting together the entire contract.Chapter 2: Function, purpose and its implementation of arbitration agreement and independence of arbitration clause. This chapter is divided into three sections. The first section discusses the function of arbitration agreement for the value of arbitration. The agreement is the cornerstone of arbitration system. Only the effective existence of arbitration agreement can support the subsequent arbitration procedure and the validity and enforceability of an arbitral award. The first function of an arbitration agreement is empowering function. It vest right in parties to go to arbitration, and vest power in arbitration tribunal to hear the case, and vest power in arbitration institution to accept an application of arbitration, and make the empowerment of an arbitral award. The second function of an arbitration agreement is to hinder the case to be submitted to the lawsuit solution. The second section discusses the function of the independence of arbitration clause. Its direct function is to facilitate the parties to submit arbitration, to accelerate arbitration procedure effectively avoiding any delay. The indirect function is to promote the efficiency of justice at the lowest as possible cost. The third section discusses the purposes and function realization of arbitration clause. The independence of arbitration clause is designed to make the arbitration applied as can be as possible, to construct modern arbitration system. About the realization of its function, this paper explores it respectively from economic considerations, social significance and dispute resolution.Chapter 3: The evolution of rules of independence of arbitration clause. This chapter is divided into three sections. The first section firstly tease out and present the origin, development and present application status of independence of arbitration clause in various countries and regions, the arbitration convention and representative arbitration institutions from the historical perspective focusing on two legal representatives of countries—France, Switzerland, Germany and England, the United States, including both the application of court and the adoption of legislation. In addition to national rules, this section also involved regulations and applications of independence of arbitration in major international arbitration conventions—Geneva Protocol(1923), New York Convention, European Convention, ICSID Convention. The third section discusses the application of arbitration clause in international arbitration rules and arbitral awards. The study found that independence of arbitration clause is the achievement of development of modern legal system, although arbitration clause has certain independent characteristics since in Rome law and perform their functions. Of cause, application of independence of arbitration clause is a gradual process where national courts are the important driving forces in both civil and common law. In the legislation, Because UNCITRAL Model Law adopted the independence of arbitration clause in 1985, therefore, many countries or regions was influenced by the adoption in the arbitration legislation updating. In addition, the most important international arbitration institutions are stipulated for the independence of the arbitration clause in its rules. However, although the broad application of independence of arbitration clause by judicial, legislative and arbitration circles shows generally the linkage effect to a certain extent, but this does not mean that the arbitration clause can be obtained complete immunity from the main contract defect in reality. In some cases, the main contract flaws can lead to an arbitration clause lost its independence, and these cases are mainly concentrated in the circumstance where the main contract is invalid or not formed, or transfers. In addition to the judicial, in academic field, because the relevant theoretical issues of independence of arbitration clause is not considered to be in line with the traditional legal logic, thus the debate concerning independence of arbitration clause did not stop until now. To U.A.S. as an example, in recent years, the “unconscionability” in state common law becomes the main tool to negate the application of independence of arbitration clause and impact on the independence of arbitration clause in theory and practice. In addition, because FAA does not expressly provide the independence of arbitration clause, the expansive pre-arbitration interpretation of FAA of Supreme Court of America aroused intense questioning at the state level. Thus it can be speculated, there will be more confusions and debates in future without continuing logic research on independence of arbitration clause to strengthen the argument for providing theoretical support.Chapter 4: Application of independence of arbitration clause. This chapter is divided into two sections to discuss the application of independence of arbitration clause. first section distinguishes the different application of independence of arbitration clause in different situations including principal contract does not exist, or is invalid, illegal, and its termination and assignment. Nowadays, the independence of arbitration clause is most vulnerable to the negative where principle contract does not exist. But to make a distinction in all kind of validity of principle contract is not necessary, because it violates the law logic and would only complicate and chaos application of arbitration clause not in conformity with the trend of the judicial task is simple. Therefore, no matter how the validity of principal contract is, the independence of the arbitration clause must be maintained comprehensively in situations where even principal contract does not exist, or is invalid, illegal, terminates or has been assigned. In the case of assignment of principle contract, the application of independence of arbitration clause should be in accordance with the fact that parties reach their consensus about contract and arbitration clause. The correct judgment of the consensus is that if the parties signed on contract assignment clause broadly, then, that is regarded as the true meaning of parties to transfer both contract and arbitration clause. If transferee expressly does not accept the arbitration clause in the assignment, according to the independence of the arbitration clause, there can been considered no consensus to be reached. The second section discusses application consequences of independence of arbitration clause. A total of four for its consequences, respectively, the principle contract and arbitration clause may be governed by different countries or regions, the contract and arbitration clause may be governed by the different rules of same country or region. The non-existence, Invalidity, illegality and termination of principle contract shall not affect the validity of arbitration clause, in like manner, the invalidity, illegality, termination of arbitration clause or being defaulted on arbitration clause shall not affect the validity of contract.Chapter 5: The rules and practice of independence of arbitration clause in China. The chapter is divided into three sections to discuss about the rules and practice of independence of arbitration clause from its origin in our country. The first section explores the Chinese legislative process of independence of arbitration clause. Section second deals with application situations of independence of arbitration clause in judicial trial by teasing the typical cases which affect the validity of the arbitration clause. The theme of third section concerns construction of the legislation and practice of independence 0f arbitration clause in China. First of all, it summarized gains and losses in the field of application of independence of arbitration clause through the analysis legislation rules and practice application, then forecast the future development trend and puts forward some legislative suggestions in this paper.