Study On The Applicable Law Of International Commercial Arbitration Agreement—from The Perspective Of Pro-Arbitration Policy

The international commercial arbitration agreement is the prerequisite for the commencement of the arbitration procedure.The application of the arbitration agreement determines the validity of the arbitration agreement to a certain extent.From the point of view of "pro-arbitration",the scope of application of the arbitration agreement should be expanded as much as possible.The New York Convention gives the power of determining the validity of arbitration agreement to the laws of each country itself.Most of countries only stipulate the written form and the willingness to the arbitration of the parties,facing international loose standards of pro-arbitration,China shows antipathetic characteristic: Among them,miscellaneous provision of applicable law to confirm the validity of arbitration agreement is Chinese law,and many courts cannot use the principles of private international law to make a flexible interpretation,resulting in arbitration agreements often found invalid,the focus of denying the validity of arbitration agreement mainly reflect in a clear agreement on the arbitration body.In the practice of international commercial arbitration,especially in the background of China's strong support for the development of arbitration,the courts and tribunals of most countries have adopted that the standards of applicable law to determine the validity of the arbitration agreement become from strict to loose,and we need a flexible interpretation in the process of applying the law,as well as to strengthen the application of the relevant principles and theory of international private law.All those above are the future development direction and trend.This paper attempts to discuss the international and Chinese legislation and judicial practice on the applicable law of arbitration agreements and the influences to validity of the commercial arbitration agreement,through the international convention,that is,the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards(hereinafter referred to as the "New York Convention").This paper falls into four chapters:The first chapter mainly introduces the general theory of validity of arbitration agreement;summarize the element which the valid arbitration agreement should include,lead to the importance of applicable law in determining the validity of the arbitration agreement.Since different countries regulate various validity's standard for arbitration agreement,therefore it will end up with different results when applying laws of different countries,and it will have a negative impact for integration of international arbitration agreement.Finally,this chapter views the history of China's arbitration practice and the historical background of arbitration law and applicable law.The second chapter mainly analyzes the controversy of the applicable law of arbitration agreement,including the rigidity of the separability of arbitration clause in our country,which leads to the complete denial of contract applicable law as the arbitration agreement applicable law.In contrast,author introduces the separability of arbitration clause in common law as the substitute role to expand the scope of the law applicable.The second section introduces the general rules of applicable law the arbitration agreement in determining the validity,including the traditional subjective and objective criteria.In recent years,the development of pro-arbitration policy is the general legal principle which affirm arbitration agreement valid as much as possible,as well as theoretical and practical situation around the world.And this chapter analysis the theoretical disputes for rules and principles above.In the third chapter,based on the comparison of the New York Convention and the practice of international commercial arbitration,the author analyzes the problems existing in the application of law from legislation and practice.For example,the element for the validity of the arbitration agreement is too harsh,and how to reasonably interpretate the applicable law with no agreed arbitral institution and seat of arbitration,as well as put forward the corresponding viewpoint to deal with it.The fourth chapter summarizes the reasons of China's legislation and practice,and the international legislation and practice as a reference,as well as the "pro-arbitration" policy.Through the case shows the measures that China should take and development trend in the future.