The Boundary Of The Expansion Of Arbitration Agreement

The parties' consent constitutes the foundation of arbitration.The traditional theory believes that the consent should be reflected by written arbitration agreement which only applies to the signatories.However,as the current cross-border deals turn to be extremely complicated,strictly applying the arbitration within the signatories may have difficulties in coping with the emerging issues,such as multi-parties deal,chain contracts,transfer of right and obligation,agency and the other disputes,and cannot safeguard the parties' right under substantive laws.In this regard,the expansion of parties' scope has become a trend in the field of international arbitration,so that the tribunal not only governs the dispute between signatories,but also expends the arbitration agreement to govern non-signatories.Promoted by the need of expansion,the United States and France have made huge contribution to the various theories of the arbitration expansion,which includes agency theory,estoppel theory,the third party beneficiary theory,the piercing of corporate veil theory,the transfer of right and obligation theory and the group of company doctrine.However,the practice of the above mentioned theories is not always as success as expected.On one hand,there is no international convention or model law which stipulates the arbitration expansion rules.The understanding of the scope of expansion from one country may be different from another country and the practice by one country may be considered radical by the other country,so that the cross-border recognition and enforcement of arbitration award will be affected by the differences mentioned above.On the other hand,the arbitration agreement should not expand without limitation.The potential unlimited expansion will hurt the foundation which the development of arbitration relied upon and cause conflict in jurisdiction distribution between arbitration and litigation.As long as the trend to expand the arbitration agreement is obvious and the border of arbitration jurisdiction has to be clear as well,the direct question we faced here is: where and how to determine the border to the expansion of arbitration agreement? We also need to ask if the arbitration consent is still essential in determine the expansion? The paper will try to analyze and answer the question whether the arbitration consent(or to be more specific,the implied consent)could be set as the border line of arbitration agreement's expansion and the paper will apply the comparative study method and case study method to analyze the current expansion theories and the effect of arbitration consent in these theories.Meanwhile,the paper will try to advice on the reform of China's arbitration agreement's expansion practice.The first chapter is about an overview of the boundary problem of the expansion of arbitration agreement.The chapter is divided into three parts.Starting from the development of the arbitration agreement's expansion,the chapter firstly explains why the theoretical phenomenon of the expansion of the arbitration agreement couldhappenand why the expansion will have such a large demand and development in a short time.Secondly,this chapter then discusses the restrictive factors that accompany the expansion of the arbitration agreement.The domestic and foreign scholars have summed up reasons for the restriction,and I have divided them into theoretical and policy level to examine respectively.From the author of these reasons are divided into theoretical and policy levels were discussed and reviewed.Finally,the author discusses the rationality of restricting the expansion of arbitration,and points out that the establishment of arbitration boundary has two aspects of theory and policy.The second chapter mainly analyzes the role and influence of arbitration from the two aspects of the type of expansion and the way of expansion.In this chapter,the author first divides the parties to the arbitration agreement into three categories: 1.The unconfirmed contract party;2.The non-contractor who has agreed to reach the model;and 3.The legal arbitration party,through the theoretical analysis,One by one to analyze whether the three types of parties have the appropriate arbitration.Secondly,the author tries to verify the compatibility of arbitration with these expansion paths by way of case study,which will classify the current international mainstream expansion methods.Chapter 3 examines the actual use of the expansion of the arbitration agreement by using "implied".In this chapter,the author first analyzes the rationality of the expansion boundary of the arbitration agreement.It is not only the requirement of the principle of autonomy,but also the requirement that there should be a clear jurisdiction between arbitration and litigation.In the next step,the author analyzes the theory of security,the incorporation of generalization,and whether the theory of corporate group has “consensuality”.The fourth chapter is the analysis and suggestion of the arbitration agreement boundary in our country.Although China has been discussing the proposition of the expansion of the arbitration agreement(and the "third party of arbitration" since 1998),China has maintained a strict and prudent attitude towards the expansion of the arbitration agreement in legislation and justice.On this basis,combined with the above analysis of the expansion of the arbitration agreement,the author puts forward the proposal to establish the arbitration agreement to expand the boundary and reduce the policy side,so as to develop the expansion of our arbitration agreement.