A Study On The Validity Of Hybrid Arbitration Clause And The Enforcement Of Hybrid Arbitration Award In International Commercial Arbitration

The validity of abitration clause,which concerns about whether the abitration institution has the jurisdiction and the recognition and enforcement of the abitration awards,is a basic question in abitration area.With the development of international commercial arbitration,arbitration clause in accordance with the model arbitration agreement has been unable to meet the needs of the parties,so “hybrid arbitration clause” occurs.In a certain type of hybrid arbitration clause,the parties place the administration of arbitration in the hands of one arbitration institution by using the rules of another institution.What is the validity of hybrid arbitration clause? How to execute the arbitration clause? Is there any risks of the recognition and enforcement of Awards? These problems,both for arbitration institutions and judicial organs,are to be solved as soon as possible.This paper introduces the meaning,the causes and the overview of the validity of hybrid arbitration clause first.Then this paper makes a comprehensive study on the validity of hybrid arbitration clause and the risks of the enforcement of the award with the method of combining normative analysis and empirical analysis.Lastly,this paper puts forward some suggestions on the parties to make the hybrid arbitration clause.In addition to the introduction and conclusion,the thesis consists of three chapters.The main contents of each chapter are as follows:The first chapter introduces the meaning,causes and the overview of the validity of hybrid arbitration clause.This chapter first makes it clear that hybrid arbitration clause is that the parties place the administration of arbitration in the hands of one arbitration institution by using the rules of another institution,and thus the main difference between the hybrid arbitration clause and the normal arbitration clause is the arbitration rules,based on which this paper analyses the causes and the institution to decide the validity of the hybrid arbitration clause and the proper law thereof.In consideration of the cost and the compromises of the negotiation,the parties are willing to make the hybrid arbitration clause.In addition to the convergence of the arbitration rules of the main arbitration institution all over the world,hybrid arbitration clause occurs.Because the main difference between the hybrid arbitration clause and the normal arbitration clause is the arbitration rules,and the institution to decide the validity of the hybrid arbitration clause and the proper law thereof have nothing to do with the difference of the arbitration rules,the rules of determination of the institution to decide the validity of the hybrid arbitration clause and the proper law thereof of the normal arbitration clause apply to the hybrid arbitration clause.The second chapter mainly discusses the validity of hybrid arbitration clause in China and abroad from the perspective of the laws and regulations and the arbitration rules and the judicial practice.Because the main difference between the hybrid arbitration clause and the normal arbitration clause is the arbitration rules,and the validity of the hybrid arbitration clause has nothing to do with the difference of the arbitration rules,the rules of determination of the validity of the hybrid arbitration clause of the normal arbitration clause apply to the hybrid arbitration clause.Laws and regulations all over the world stipulate that a valid arbitration agreement shall be in writing and the disputes thereof shall be within the scope of arbitration.The stipulations of the arbitration rules about the hybrid arbitration clause vary.Most of them allow the parties to appoint the rules to apply,as long as there is no obstacles to stop execute the appointment and no conflict with the mandatory provisions of law,but some of them impose the need to be approved by the arbitration institution or directly do not allow the parties to appoint the arbitration rules.With regard to the validity of the arbitration agreement,the judicial authorities abide by the principle of “doing it best to make the arbitration agreement effective” The arbitration agreement is made valid if there is nothing invalid and does not exist non-enforceable condition in the arbitration agreement.Therefore,before the parties conclude a hybrid arbitration clause,it is necessary to understand the validity of the arbitration clause in the country where the arbitration institution is located and whether the arbitration rules recognize the validity of the hybrid arbitration clause.The third chapter mainly discusses the enforcement of the award.At present,most of the countries in the world are the contracting parties of the New York Convention,and the provisions of the New York Convention are applicable to the recognition and enforcement of most international commercial arbitration awards.Under the framework of New York Convention,hybrid arbitration award is most likely rejected to execute due to violation of the statutory procedures or arbitration agreement of the parties,to which the insigma case belongs.Therefore,in order to reduce the risks of not being executed due to the improper operation of the arbitral institution,the parties may appoint the experienced arbitration institution.The main research methods used in this paper include normative analysis,case analysis and comparative analysis.1?Normative analysisThis paper tries to find out the provisions of the laws and regulations and the arbitration rules about the validity of the hybrid arbitration clause,and make clear whether the hybrid arbitration clause is valid.As to the enforcement of the award,this paper analyzes the possible problems in the enforcement On the basis of the provisions of the “New York Convention”.2?Case analysisIn addition to the normative analysis,this paper also uses the method of case analysis to analyze the validity of the hybrid arbitration clause.The method of case analysis is also used to summarizes the possible problems in the execution of hybrid arbitration awards in the judicial practice.3?Comparative analysisOn the basis of the provisions of the laws and regulations and the cases from several countries,this paper analyzes the validity of the hybrid arbitration clause and the enforcement of the award with the method of comparative analysis,and then summarized the validity of the hybrid arbitration clause and the possible problem of the enforcement of the award,and at last put forward the recommendations.