Theory Of The Applicable Law Of International Commercial Arbitration Agreement

The application of law of international commercial arbitration agreement is a traditionand fundamental theoretical question in arbitration. Due to the importance of applying law ofarbitration agreement in the international commercial arbitration, a lot of related researcheshave been done. However, compared with another two major questions in the application oflaw of international commercial arbitration, namely the application of procedural law andsubstantive law, such researches are not sophisticated. The application of law of arbitrationagreement is a procedure to determine the effectiveness of the agreement based on the rules ofsubstantive law, which is the beginning of all procedures and contents.No justified instructioncan be followed in deciding the existence, effectiveness, and termination of arbitrationagreement, arbitral procedure and the effectiveness of arbitral award and enforcement if thequestion of application of law in the arbitration agreement has not been solved.This paper starts with the theoretical analysis of the character of application of law ofinternational commercial arbitration. By analyzing the origin of arbitration agreement’s legaleffectiveness, the paper confirms the leading status of principle of party autonomy in theapplication of law of international commercial arbitration agreement and clarifies that partiescan choose individually the applicable law of the arbitration agreement. However, theprinciple of party autonomy is limited by imperative law, which is not the imperativeregulation of the main contract, but the arbitration agreement itself.An arbitration agreement is a special substantive contract with its own applicable law.This distinctiveness decides the special application of law. Thus, it is important to distinguishnot only between the application of law of international commercial arbitration agreement andthe application of arbitral procedure and substantive law, but also between the former and theapplication of law of foreign-related contract. The application of foreign-related contract isnot equal to the application of law of arbitration substantive law. The applicable law ofarbitration agreement may e different from the main contract and these two are notcorresponding with each other.As to the range of application of the applicable law of arbitration agreement, nosubstantial difference can be found compare with other foreign-related civil and commercialcontracts since it is a kind of substantive contract in essence. Appropriate regulations shall be applied to different aspects of international commercial arbitration agreement in accordancewith the rule of separation in the application of law of foreign-related contracts.The paper concludes, in combination of related cases, with the comments of legislationand practice of arbitration agreement under the current arbitration regime in China. Theauthor expects that this paper would contribute to the research of international commercialarbitration agreement.