On The Validity Of International Commercial Arbitration Agreement Form

The form condition of international commercial arbitration agreement is the precondition for judging the validity of an arbitration agreement and the key link for recognition and enforcement of arbitral awards. So, strict rules of arbitration agreement form may expand the unfavorable effects on the development and application of international commercial arbitration system. How to understand the meaning of arbitration agreement in writing and make some reasonable suggestions to our arbitration law system is the main purpose of this thesis.Chapter one demonstrates the expanding trend of the validity of arbitration agreement form by comparing the relevant rules of the"Uncitral Model Law on International Commercial Arbitration","British Arbitration Act(1996)"and"Germany Code of Civil Procedure (1998)"and by analyzing certain typical cases under the basis of"Section 2 of Article 2 of the New York Convention".Section 7 of Article 2 of the Charter of the United Nations stipulates that"the term'agreement in writing'shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams."At present,this rule has been accepted as an law rule by international society. Even so, this convention has some defects still and this thesis analyzes some defects such as the"signature","exchange"and"quote"; although"Model Law"has made extensive interpretation on"agreement in writing", but it still can not judge the validity under special circumstances. So this thesis introduces the revised proceeding toward the above problem of"Model Law"; encouraging arbitration has been accepted among many countries as the understanding of international commercial arbitration value grows. So, this thesis introduces relevant aw rules of Britain and German; at last, this thesis introduces 2 cases to provide rich evidence for the core idea of this thesis.Chapter two studies how to judge validity of arbitration agreement under 4 special circumstances.According to"New York Convention", if one party does not sign his name on the agreement, the agreement can not bind him. But as practice develops, some countries'legislation, judicature and arbitration theory believe that arbitration clauses can bind the party which does not sign legally; some countries consider the verbal and tacit acceptance can not meet the form in writing requires of"New York Convention", but we should notice that verbal and tacit acceptance is the complement of"New York Convention"; as the internet technology develops quickly, online arbitration comes up, which provides solution without time and space limitation but quickness, flexibility and economy. This solution can help people settle the dispute quickly between distant places with different legislation system. But judging from practice, online arbitration has many defects on substantive and procedural laws. Here we mainly discuss two problems, the judgment of written form validity and the signature; from sixties 20th century in international investment circles, compellent arbitration on dispute occurs, which does not require the arbitration agreement. The compellent arbitration has rich influences to international commercial arbitration development. The protection provided by developed countries'investment treaties and other international treaties enhances more and more and developing countries lay special emphasis on attracting foreign investment gradually. So compellent arbitration will develop quickly and roundly and its sphere of application may crosses from investment to other fields.Chapter three demonstrates the following questions and issues concerning the law conflicts of arbitration form validity : occurrence, settlement, applicable law confirmation. Then this chapter makes suggestion that applying"more favorable right provision"of"New York Convention"as the breakthrough point to settle the law conflict.In view of the position and role of arbitration agreement in arbitration system, many countries put forward a claim on form. Because of the specific stipulations and differences in understanding, law conflict also comes up in issue of arbitration agreement form condition. And there are no uniform standards of how to settle the above problem exist internationally; judging from the practice, the validity of form is confirmed by the application of relevant substantive rules directly, not the conflict rules. Arbitration court can apply following laws to judge the form validity: international treaties, international commercial arbitration rules, domestic arbitration laws, precedents of international arbitration organization and courts.Chapter four discusses the current situation of China arbitration legislation and makes reasonable suggestions to legislation in reference to Chinese situationChina legislation constantly emphasizes on the importance of arbitration agreement form and considers the written form as the condition in judging validity of arbitration agreement and denies the verbal agreement. So Chinese legislation is limited and inflexible and does not meet the needs of tech and commercial development. In view of above situation, this thesis put forward some legislation and judicature suggestions: first, change the traditional idea of arbitration legislation and compile the arbitration law system to promote practice; second, at the stage of law application, law court and arbitration court should apply"more favorable right provision"of"New York convention"flexibility and sufficiently.Therefore, in tune with the times, China should desert traditional idea of arbitration, use developed countries'experience for reference and apply"more favorable right provision"of"New York convention"to breakthrough unfashionable legislation so as to provide wholesome law circumstance for the development of international arbitration.