The Effectiveness Of The Arbitration Agreement

The agreement jurisdiction principle, established in modern arbitration law system, lays arbitration agreements on the central position of the arbitration law system. We may say that arbitration agreements are the basement of the entire arbitration law system. Arbitration agreements are characteristically a kind of legal activity. It has the nature of legal activities; this is to say arbitration agreements take meaning expression of arbitrates as the core essential factor. "The Arbitration act" of China gives general stipulation to the constitution and potency of arbitration agreements. However, these stipulations cannot meet the needs of increasing arbitration practice. On September 8, 2006, the Supreme People's Court announced "Explanation on many questions about applying < The Arbitration act of the People's Republic of China > ". The appearance of this judicial interpretation solved many problems related to the potency judgments of arbitration agreement. But it doesn't define arbitration agreements from the aspect of law and theory. This article begins with the legal nature of arbitration agreements, analyzes its theoretical base, and then classifies the difference between the establishment and effective elements of arbitration agreement, thus to define the applicable level of the arbitration agreement law and theory, and to solve difficult problems in arbitration practice by adopting law and theory on an upper level. In the first part of this article, I induct the concept of arbitration agreements on the base of legislation and theory, and think that meaning expression requesting mutual arbitration is its core factor. Then, by utilizing basic theories related to meaning expressions and legal activities, I want to prove that arbitration agreements are actually legal activity. Last, I will give a brief introduction and elaboration on the elementary theory of legal activities. In the second part, by using elementary theories on legal activities and meaning expression, I explain that tenable elements of arbitration agreements include general elements and special elements. The former refers to the meaning expression of requesting arbitration; and the latter refers to the fact that an arbitration agreement must be presented in written form. Besides, I will analyze those arbitration agreements lacking meaning expressions. In the third part, I first elaborate the differences between legal activity explanation and legal explanation. Next, I think, an arbitration agreement explanation is actually a contract explanation, and contract explanations are different from legal activity explanation from one side. Finally, I will talk about and analyze the goal and methods of explaining an arbitration agreement after an established arbitration agreement has been found not clear and concrete in its content. In the fourth part, by adopting elementary theories on legal activities, I analyze the basic elements making an arbitration agreement effective. There are four important elements: first, the behavior person has complete civil capability; second, the process of requesting arbitration is legal, this means that the arbitration meaning must be expressed truly and freely. Third, the arbitration agreement content should be legal and appropriate, that is, the arbitrated items should be arbitrable. Fourth, there must be a chosen arbitration organization. What's more, I give detailed analysis on the potency of arbitration agreement when choosing arbitration organizations. In the fifth part, I discuss different ways of potency after an arbitration agreement is tested by its potency elements. According to the potency elements affecting arbitration agreements, the arbitration agreement presents in different ways, including effective arbitration agreement, invalid arbitration agreement, revocable arbitration agreement, potency undecided arbitration agreement and expiration arbitration agreement. And I also talk about the power influencing litigants, the arbitration organization, the arbitrator as well as the court potency from effective arbitration. The sixth part mainly discusses potency ownership of an effective arbitration under the condition of the following: agency system, adopting replacing power, contract transfer, non-owner organization establishment as well as the situation when litigant passes away.