Analysis On Separability Of Arbitration Clause And Several Correlated Legal Issues

Arbitration is a kind of settlement of nongovernmental dispute, which is ancient but still in current use. It is already being during to ancient Greece in the 6th century B.C. Arbitration began to flourish in the field of international commerce and become the major avenue to international commercial dispute settlement from the 20th century. The arbitration agreement which is called the cornerstone of the arbitration is of the central importance in the arbitration system. The arbitration clause is the major manifestation of the arbitration agreement. Whether the effect of the arbitration clause is independent from the contract involved whether the international commercial clause is raised its value and developing rapidly. In this sense, Separability of Arbitration Clause is raised. However, it is a long and tortuous course for the theory to be accepted and applied to the practice, especially in China. There still exist many disputes to the understanding and application of the theory even to this day.The paper raises Separability of Arbitration Clause from such basic as concept of arbitration clause, criticized the traditional views and points out the relativity of its Separability. The paper points out that the theory cannot be reasoned simply in the legal logic, manifestation of the political state's compromise to the civil society , which is one of the manifestation of the ideal pattern of modern rule of law; and the Separability of Arbitration Clause implies the value and significance of the procedure priority in the relationship between procedure and substantive law. On the basis ofthe connotation of the theory, the paper introduces and analyzes the various countries in the world (mainly English, France and USA) and international organization especially China's legislation and practice on Separability of Arbitration Clause, by comparative and historical methods. Then, the paper ponders the puzzle caused by the application of the theory, and draws a conclusion that the rescission, dissolution, invalidity, espiry and void of the contract have no influence on the effect of the arbitration clause. The principle of Separability causes an important issue: whether the arbitration clause is citing acquiescently? The paper criticizes the viewpoint that the understanding of the theory and does not conform to the value and development trend of arbitration, and defines the viewpoint of citing acquiescently. On the basis of the above-mentioned exposition the paper holds that the Doctrine of Separability of Arbitration Clause should be accepted entirely in the field of arbitration in China, the principle of Acquiescence in Citing Arbitration Clause should be applied, and the competence-competence system should be set up as soon as possible. The paper also attempts to propose amendments to the relevant clauses of China's arbitration Act.