On The Validity Of The Arbitration Agreement And Its Finds

Arbitration is one of the important alternative dispute resolutions. Arbitration agreement plays a pivotal role in the arbitration mechanism.If the quarreling parties want to resolve their dissension through arbitration, they must have a valid arbitration agreement at first.It is the valid arbitration agreement that exclude the court's jurisdiction and give the power of resolving the parties' dissention to the arbitration tribunal.Therefore,it is very important to discuss what elements consist of a valid arbitration agreement.In this article,author analyses the formal elements and the substantial elements of a valid arbitration agreement from the perspective of distinguishing the validity of an arbitration agreement from the performability of it,then discusses how to judge the validity of an arbitration agreement.This article includes three main parts:Chapter one,the introduction of arbitration agreement.After analysing the definition,classification and characters of the arbitration agreement, author analyses the legal character of it.Because its legal character is one of the jurisprudential bases of arbitration mechanism.Only after we fully understand this point,can we have a premise to discuss the related contents of arbitration agreement.Comparing some different theories on the legal character of arbitration agreement,author thinks that we should regard arbitration agreement as an agreement having dual nature.Chapter two,the indispensable elements of a valid arbitration agreement. In this part,author analyses the formal and substantial elements affecting the validity of an arbitration agreement.The author thinks that we should follow the principle of sustaining arbitration,encourage people to resolve their problems through the method of arbitration.We should not require that a arbitration agreement must satisfy strict standards,whether its formal elements or substantial elements.We should try our best to make an arbitration agreement a valid one,and fully respect the parties' will of entering the procedure of arbitration.Meanwhile,in each section,author analyses related contents in our Arbitration Law,pointing out some limitations in it,then giving a few advices to make up them.Chapter three,determining the validity of arbitration agreement.In this part,author analyses how to determine the validity of an arbitration agreement.This part consists four sections,that's the determining principle,the governing law,the determining organ and the time when the parties can put forward their demurrer on the validity of the arbitration agreement.Then,author analyses the related contents in our Arbitration Law,points out the limitations of it and bring forward some advices to make up them.