On The Effectiveness Of International Commercial Arbitration Clause In Case Of Contract Transfer

As a mechanism of dispute resolution, arbitration arises mainly as a result of the development of commercial transaction, which is principally based on the mutual intention of the parties to conduct arbitration. As is generally acknowledged, the mandatory provisions regarding the written form of arbitration clause and the execution requirement thereof prescribed in most arbitration laws and conventions are to guarantee the authenticity of the parties'intention to conduct arbitration in case of dispute occurrence; however, with the development of modern arbitration practice, it seems quite a necessity to honor the binding effect of an international commercial arbitration clause to non-signatory parties in case of contract transfer, which is rather a reflection of the parties'intention to arbitrate, and further a guarantee of the efficient resolution of disputes. This paper tends to explore the effectiveness of international commercial arbitration clause in case of contract transfer through a comparative analysis of the legislation and practice of countries with advanced experience in arbitration in this regard, and further with an eye to relevant theories in this respect. Further, the paper gives a brief comment on the legislation and practice of China in this regard and proposes certain amendments thereof. This paper is comprised of four chapters, with a total of around 30,000 words. Chapter 1 gives a brief introduction of international commercial arbitration and international commercial arbitration clause, and the historical development of international commercial arbitration described herein gives rise to the significance of transferability of arbitration clause. Chapter 2 is mainly a comparative study of the legislation and practice in connection with the effectiveness of arbitration clause, which reflects the impacts of arbitration clause transferability to modern international commercial arbitration. Chapter 3 focuses on the theoretical analysis and country policy related study of the effectiveness of arbitration clause in case of contract transfer. Chapter 4 gives a brief comment on the legislation and practice of China in connection with the effectiveness of arbitration clause in case of contract transfer.