Studies On The Problems Of International Commercial Arbitration Agreement And The Jurisdiction Of Arbitration

The International Commercial Arbitration Agreement and the Jurisdiction of Arbitration have a close relationship, which exists in three domains of the actual arbitration procedure. They are the establishment of jurisdiction of arbitration, jurisdiction challenge and the accomplishment of jurisdiction of arbitration.The most important relationship between the international commercial arbitration agreement and the jurisdiction of arbitration is in the establishment of jurisdiction of arbitration.The force in the first place of an international commercial arbitration agreement is to establish the jurisdiction of arbitration. An international commercial arbitration agreement not only establishes the jurisdiction of arbitration, but also denies the appealing right of the parties and the jurisdiction of the courts, which is the fundamental principle of establishment of jurisdiction of arbitration. And this principle is called the principle of arbitration agreement jurisdiction. The international commercial arbitration system is based on the principle of party autonomy. The parties express their wish to have their future disputes resolved by arbitration in the arbitration agreement, in which the governing law, the language to be used and the legal place of arbitration are also decided. If the agreement is effective, the appointed court of arbitration obtains the jurisdiction, and at the same time, however, the related court loses the jurisdiction. This principle has obtained the approval of related international treaties and domestic laws.As we discussed above, on the matter of establishment of jurisdiction of arbitration the international commercial arbitration agreement equals the jurisdiction of arbitration. Then a new matter arises, which is how to confirm an effective international commercial arbitration agreement. For an arbitration agreement is a contract, the legal application principles are applicable to this matter.After confirming the governing law of the agreement, we shall confirm the force of an arbitration agreement. An effective arbitration agreement must include two elements, form element and substantive element. The form element requires that an effective arbitration agreement must have a written form. Substantive element includes two parts, the first one is the subjective arbitrability and the second one is the objective arbitrability. According to the general legal theories, the conduct of a person without capacity is invalid. For their social, political and economic benefits, modern states strictly limit the range of the disputes with arbitrability.After a court of arbitration begins to arbitrate a dispute, the parties often challenge the force of the arbitration agreement. Under such circumstances, who to confirm the force must be decided. In modern arbitration practices, the Competence-Competence principle is widely accepted, which means that a court of arbitration has the competence to decide its own jurisdiction of arbitration. This principle is supported by authorization of the parties' agreement and domestic arbitration laws. However, the competence of the court of arbitration is not the final one. Courts have the power to supervise the competence of the court of arbitration.The court of arbitration arbitrates the dispute by the authorization of the parties' agreement and then comes to the arbitration awards. When the arbitration awards are accepted and enforced, the final aim of arbitration is accomplished. As a part of the arbitration system, while the aim of the system is accomplished, jurisdiction of arbitration accomplishes its duty too.Modern international commercial arbitration system is built on the base of the acceptance and enforcement of the international commercial arbitration awards, in other words, on the base of the New York Convention of 1958, which is the most important convention of international commercial arbitration system. Following this logical procedure, when we discuss the relationship between the international commercial arbitration agreement and the accomplishment of jurisdiction, we must study the New York Convention of 1958.In article 5 of the New York Convention of 1958,the convention lists five circumstances under which the arbitration awards will not be accepted and enforced and an effective arbitration agreement is on the top of this list.Generally speaking, an effective arbitration agreement is not only the basis of the establishment of jurisdiction of arbitration, but also one of the basic conditions of the accomplishment of jurisdiction of arbitration.