The Arbitration Law Mandates Comparative Studies

The mandatory provisions of an arbitration law,which define the autonomy of the parties and the discretion power of the arbitral tribunal in the arbitration,is quite an important and necessary part of the arbitration law.However,the autonomy of the parties and the discretion power of the arbitral tribunal should be as much as possible acknowledged by the arbitration law;only for those matters which are not negotiable,or are related to public order or the general interests of the community,mandatory provisions shall be made and the parties cannot make agreements contrary to them even through an arbitration agreement.This paper attempts to conduct a comparative study based on typical and critical mandatory provisions of the New York Convention,the Model Law,the UK Arbitration Act,which are influential world?widely,and some arbitration laws of the major countries and regions,including but not limited to France,Germany,China mainland and Hong Kong,to explore the developing trend of arbitration and the general practices regarding some specific issues in the world.The mandatory provisions in regard to arbitration agreement mainly involve the following contents.As for the content of arbitration agreement,all arbitration laws only require that an arbitration agreement must states the common will of the parties to arbitration.However,it is mandatory that an arbitration agreement must have the chosen arbitration institution under Chinese Law of Arbitration.As for the matter for arbitration,arbitration laws of countries gradually acknowledge that civil antitrust disputes are arbitrable,but all anti?trust disputes cannot be settled through arbitration according to our arbitration law.As for the form of arbitration agreement,arbitration laws of countries in fact have broken through the strict requirements based on the New York Convention,which stipulates that an arbitration agreement must be made in written form,and require much softer conditions on the form of arbitration agreement.In terms of the composition of arbitral tribunal,arbitration laws of countries mainly adopts mandatory provisions on that arbitrators shall be independent and/or impartial,and that the parties shall have the right to challenge the arbitrators,in order to ensure that the parties enjoy the same status in the arbitration proceeding and shall be treated fairly by the arbitral tribunal.In order to give full play to the flexibility of arbitration as well as realize the procedural justice,there are relatively fewer mandatory provisions about arbitration procedures under arbitration laws of countries.Those mandatory provisions primarily require that the arbitration procedures shall meet the minimum standards of due process and that the arbitral tribunal shall give the parties equal treatment no matter how they decide the arbitration procedure in specific cases.The mandatory provisions concerning the interim measures mostly relate to the power of deciding to take interim measures in arbitration.The common attitude of the arbitration laws of countries is not to formulate mandatory provisions.Under the central premise of respecting the autonomy of the parties,arbitration laws of countries permit the arbitral tribunal to take all or part of the interim measures.The mandatory provisions in regard to the arbitral award is concerned chiefly with the requirements of its formulation,content and form.Arbitration laws requires that all or most of the arbitrators shall sign the arbitral award and specify the date of signing.Some arbitration laws stipulate that arbitral tribunal shall state the reasons upon which the award is based.Furthermore,arbitration laws of countries except the UK require that the arbitral award shall be made in written form.