Research On The Determination On Effectiveness Of International Commercial Pathological Arbitration Agreement

In the international commercial arbitration legislation and practice, international commercial arbitration agreement is the core position. Effective arbitration agreement is the basis for international commercial arbitration. However, due to lack of arbitration the parties professional knowledge or insufficient understanding of the importance of the arbitration agreement, pathological arbitration agreement is inevitable. Effect of pathological arbitration agreement processing in relation to the realization of the intention of the parties. Because of the provisions of the form and substantive requirements of the arbitration agreement on the international convention and the domestic law, friendly degree of arbitration, applicable law and the judge tendency are different, pathological arbitration agreement may have the opposite effect.In practice, the exist in the pathological arbitration agreement has certain universality. Determine the effect of pathological arbitration agreement has become an important issue of international commercial practice. With the globalization of the international economy development, international conventions and national legislation and judicial practice tend to confirm the effectiveness of pathological arbitration agreement, so as to realize the maximization of the value of the arbitration system and the intention of the parties. However, Chinese arbitration law and the judicial practice at present is not consistent with the international practice. The requirements of arbitration agreement is very strict. This not only doesn’t conforms to the International Convention on the spirit of support for arbitration, but also doesn’t accord with the international mainstream trend. And it will cause the unequal position between Chinese and foreign parties,which make our country at the disadvantageous position in the international commercial disputes.through the study of international commercial arbitration agreement, This paper draws some conclusions about the international commercial pathological arbitration agreement processing. International commercial arbitration agreement as long as have the following conditions is effective and should be executed: the parties have corresponding capacity for civil conduct, true agreement to submit to arbitration, the content does not violate the law about the rules of arbitration and the state’s public order. Party autonomy is the basis of arbitration agreement. Pathological arbitration agreement should be interpreted in order to explore the true meaning of the parties and conducive to the arbitration. The parties have the rights to remedy pathological arbitration agreement. In the case of the parties cannot consensual remedy, the arbitration tribunal and the court should exercise its remedial power of pathological arbitration agreement. As far as possible to confirm effect of pathological arbitration agreement and make the arbitration process smoothly. China should make reference to the New York Convention and other countries in the international commercial pathological arbitration agreement processing in legislation and judicial practice, adopt an open attitude to the determination of effectiveness of pathological arbitration agreement, to conform with international in the development of commercial arbitration system and to perfect our country’s system of arbitration.This paper is divided into four parts, mainly through the comparative study on relevant international conventions and the legislation of major countries. The first part defines the concept of pathological arbitration agreement, summarizes the Forms of the pathological arbitration agreement; The second part introduces the provisions of the determination of the effectiveness of arbitration agreement in the New York Convention, using the comparative research methods to analysis the processing methods determine the effect of pathological arbitration agreement arbitration on the countries where the arbitration system is relatively developed; The third part summarizes the theory of the second chapter. Theoretically discuss the legal basis and the remedial method of arbitration agreement, summarizes the effectiveness of pathological arbitration agreement on legal theories and remedy; The fourth part introduces the effect determination of pathological arbitration agreement on Chinese legislation and judicial practice to international commercial pathological arbitration agreement. With case analysis and comparative research, pointed out the deficiencies of Chinese effectiveness determination of pathological arbitration agreement and puts forward some improvement suggestions.