Research On The Autonomy Of Arbitration Clauses

Arbitration is wildly adopted as a convenient solution to settle the commercial disputes,for its efficiency,low-cost and flexibility.As in practice the arbitration clauses are a common form of arbitration agreements,the relation between the arbitration clauses and the main contract is generally concerned,and becomes one of the arguing points in the International law circle.The autonomy of the arbitration clause means that the arbitration clause as one clause in the main contract,although it is a part of the main contract,it is independent from the main contract,and separated from the other clauses in the contract,in other words,it means that the invalidity of a contract does not affect the validity of the arbitration clause included therein,and an arbitration agreement shall exist independently.Any changes to,rescission,termination or invalidity of the contract shall not affect the validity of the arbitration agreement.An arbitration tribunal has the right to rule on the validity of a contract.Along with the development of the arbitration,the autonomy of the arbitration clause is generally recognized as a principle by most countries in their laws and arbitration rules.The theoretical basis of this principle is originated from the unique nature of the arbitration agreement--its separability from the main commercial contract,as a clause to solve the disputes may arised from the contract.Because of this unique nature,the arbitration clause's validity wouldn't be affected by the invalidity of the main contract.Although it is emerged in the practice,it shows respect to the free will of the contract parties and the principle of self-rule.Substantially,this principle is accordance with the original meaning of the arbitration,that is economy and conveniency.To some level,without this principle,the arbitration will lost its pratical operability.And also,with this principle,the advantage of the international arbitration can be fully developed,and it minimizes the native laws' interferings.Therefore,the recongnition and application of the principle of the autonomy of the arbitration clause is the main trend internationally,but the scope of its application is different.Generally,most countris are supportive of the arbitration.In paper,the auther first introduces the concept of the autonomy of the arbitration clause,its thereotical basis,its history and its development,then analyses the laws and rules related,and combining with the arbitration law and rules in China,brings forward some advices to fulfill the legislation of the principle of the autonomy of the arbitration clause in China.