Study On The "favor Validation" Rule In The Application Of Laws In Foreign-related Arbitration Agreements

The current China's law application rule of international arbitration agreement has absorbed the “favor validation” rules,making up for the deficiencies between the law of the location of the arbitration institution and the law of the place of arbitration.Nevertheless,the rule is not completely open from the scope of application,and its application results are not completely effective.Therefore,the “favor validation” rule applicable to China's international arbitration agreement law is not a thorough “favor validation” rule.In order to enhance the competitiveness of China's arbitration market,China should be more open and thorough in incorporating the “favor validation” rule into the law application of international arbitration agreements.This paper discusses the “favor validation” rules applicable to the arbitration agreement law,and proposes how to improve the “favor validation” rule in the application of international arbitration agreements.This article is divided into five parts:In the first part,this paper first discusses the occurrence and development of the“favor validation” rule in the application of law and the occurrence and development of the “favor validation” rule applicable to the arbitration agreement law.Firstly,the“favor validation” rule is raised based on the development of the result-selection theory of modern private international law.Secondly,it discusses the development and occurrence of the “favor validation” rule in the application of arbitration agreement law.The “favor validation” rule in the application of arbitration agreement was first developed based on a case study of the British court.More and more countries are Judicial and legislative support for the effectiveness of international arbitration agreements.In the practice of some countries,there is also the application of the “favor validation” rule of transformation.In the second part,this paper analyzes the “favor validation” rule for the application of international arbitration agreements,mainly from the analysis of the advantages and disadvantages of the “favor validation” rule applicable to the arbitration agreement law,and analyzes the choices it reflects.The value of law,the disadvantage is to analyze its possible dilemma in practice.On the one hand,the value of flexibility embodied in the “favor validation” rule is inconsistent with the deterministic outcome pursued by private international law.The characteristics of thesubstantive and effective results pursued by it improve the traditional rules of choice that only pursue conflict justice.The rules of result selection are absorbed in the traditional conflict norms.On the other hand,it may have the dilemma of foreign law identification and damage to the party's autonomy.This paper analyzes the dilemma of two aspects.In this regard,these dilemmas do not hinder “favor validation ” rule.In the third part,this paper discusses the development and inadequacies of the“favor validation” rule in the application of the international arbitration agreement in China,paving the way for the improvement of the “favor validation” rule applicable to the arbitration law in China.China's “favor validation” rule appeared in the“Supreme Law Regulation” in 2017,and the “favor validation” rule applicable to the arbitration agreement law mainly have the following three shortcomings.The first is the “favor validation” rule selection.The scope of the points of connect is too narrow,judges only choosing between lex arbitri and the law of the place where the arbitration institution is located;the second is that “favor validation” rule of China does not include the main contract in the scope of its selection,and does not comply with the mainstream situation of the applicable rules of law;the third is that when the courts in China are unable to determine the place of arbitration,lex fori is usually applied,that is,the law of our country leads to the invalidity of the arbitration agreement.In the fourth part,this paper makes recommendations on how to improve the“favor validation” rule applicable to the law of international arbitration agreements in China.The first is to expand the scope of the “favor validation” rule applicable to the arbitration agreement law.However,based on the nature of the contract of the arbitration agreement and the subject identified by the foreign law,this paper believes that the law selected by the parties for the arbitration agreement should still be placed in the first place;The second is the applicable law of increasing the main contract in China in the “favor validation” rule.On the one hand,it reflects the contractual nature of the arbitration agreement,on the other hand,it expands the scope of the arbitration agreement and increases the arbitration.The probability that the agreement is valid.The third is to increase the law of the court in the "favor validation" rule.The law of the court as an alternative law is the mainstream of the law applicable to arbitration agreements.Finally,this paper argues that "favor validation" rule should be improved on the basis of the existing rule,and the expression of "applicable law confirming the validity of arbitration agreement" should be used instead of simply copying the rulesin the extraterritorial legislation.In the fifth part,the article summarizes the whole article.According to the analysis of the previous four parts,the “favor validation” rule should be improved as follows: the international arbitration agreement applies the law chosen by the parties.If the parties have no choice,the law that stipulates the validity of the arbitration agreement shall be chosen between lex arbitri,the law of the place where the arbitration institution is located,the law applicable to the main contract,and lex fori.