Research On Judging Standards Of Foreign-related Factors In Commercial Arbitration In China

In recent years,domestic enterprises agreed to arbitration cases frequently occur,the courts generally held a negative position on the typical cases in our country.The Supreme People's Court's replied to the case of Jiangsu Wan Yuan case,which made it clear for the first time that there was no foreign elements that the arbitration agreement on the foreign arbitration institution was invalid and provided the exact basis for the court to handle such cases.Siemens issuing Golden Landmark case civil ruled for the first time to break through the inherent restrictions on foreign elements to confirm the validity of the arbitration agreement,triggering scholars on the definition of foreign elements,the validity of the arbitration agreement.This paper starts with the typical case,compares the general theory of the judgment standard of foreign elements,the difference between the major international practice and the current law in China,and analyzes the influence of the foreign factors on the validity of the arbitration agreement.Then,it elaborates the existing problems of the judgment standard of the foreign element,and tries to put forward to improving recommendations for the criteria of Chinese elements,whichmainly includes the following three components:The first part outlines the basic situation of these cases.From Jiangsu Wan Yuan case,Beijing Asahi New Sports case and the case of Siemens issuing Golden Landmark,we summarized the causes,process and results of the case,and summed up the focus of these cases at the same time.Jiangsu Wan Yuan case and Beijing Asahi New Sports case were found to be invalid,because no foreign elements in the arbitration agreement.In addition,the recognition and implementation of the arbitration award submitted by Asahi New Sports case was also rejected.In contrast to the two cases above,according to the terms of the "other circumstances that can be recognized as foreign civil relations",the trial court of the Siemens issuing Golden Landmark case finds that the contractual relationship has certain foreign factors and the arbitration clause is valid.The focus of the selected cases is related to the definition of foreign elements,the validity of the arbitration agreement.The second part is about legal analysis of the case.This paper compared the general theory of foreign elements judgment criteria and main international practice with our country,then analyzed the influence of foreign elements on the effectiveness of arbitration agreement from the aspects of the effectivearbitration agreement,the invalid situation and the relevant provisions of the New York Convention.Despite three elements,traditional subject,object,and legal relations,arbitration agreements on the cases like Siemens issuing Golden Landmark do not involve foreign elements,but according to the standards of "International Commercial Arbitration Model Law",and Chinese judicial interpretation of foreign civil about the practice of the terms,the arbitration cases mentioned above can also be judged as international arbitration.At the same time,the effective elements of the arbitration agreement,the nullity of our arbitration agreement and the provisions of the New York Convention on arbitration agreements are not involved in foreign elements,whether the arbitration agreement is effective is not related with foreign elements.The third part is the conclusion and enlightenment of the case study.Chinese commercial arbitration about foreign elements to determine the relevant standards of legislation is not updated with the background of the times,there are some problems existing in the“Element standard”,which defining foreign factors only from the surface,and ignoring the nature of the conflict of laws.The terms of the cave does not limit the discretion,the practical operation of the problem is notstrong,and there is inconsistent with the major international practice standards.It takes the disputes no foreign elements involved submitted to overseas arbitration as lack of theoretical basis for the lack of agency agreement and violation of the provisions of the New York Convention.In this regard,we should refer to the principles most closely linked to determine judgments,foreign elements to expand the interpretation of the “ Arbitration Law ” in the clear recognition of foreign arbitration,the terms of the cave to limit.Moreover,we rectify the trial point of view,“no foreign elements dispute submitted to foreign arbitration institutions are regarded as invalid”,relax foreign-funded enterprises which registered outside the pale of China(Shanghai)Pilot Free Trade Zone,to lift restrictions on foreign arbitration.