Study On The Expansion Of The Validity Of The Arbitration Clause Of The Master Contract To The Security Contract

According to the traditional arbitration theory,the scope of the arbitration agreement can be restricted only to the signatory of the arbitration agreement.With the increasing frequency of world trade exchanges and the proliferation of new types of disputes,it would seem too narrow for arbitration agreements to bind only the scope of signatories.Therefore,under the background of supporting and encouraging the development of arbitration at home and abroad,the validity of arbitration agreement begins to break through the bondage of traditional theory and extend to the non-signatory of arbitration agreement.With the efforts of scholars and various countries,the effective expansion of arbitration agreement has achieved substantial results in cases involving third party interests contracts,contract assignments,subrogation,merger and separation of companies,parent and subsidiary companies,etc.However,there is no question concerning the expansion of the validity of the arbitration clause of the main contract to the guarantor of the guarantee contract.In the guarantee legal relationship with high relevance,there will often be a master or two contract relationship,three different contract subjects,if the parties in the main contract agreed to submit the dispute to arbitration settlement,and the guarantee contract does not agree on the arbitration clause or agreement litigation or other dispute resolution,This would allow the related matters to be dealt with separately under different dispute resolution mechanisms.Such a way of dealing with the parties in fact waste time,money costs,in the courts,arbitration institutions is a waste of judicial resources.The expansion of the main contract arbitration clause is an important and complex new subject,although it has become a fact and trend,but it is faced with the situation of lack of theoretical foundation and many obstacles in practice,which is urgently needed to be discussed and analyzed theoretically and in practice.This paper discusses the topic of the expansion of the validity of the main contract arbitration clause into five parts.The first part elaborates the background reason for the expansion of the effectiveness of the main contract arbitration clause.The litigation explosion is in parallel with the support of arbitration,the court is overloaded,and the traditional theory of arbitration can no longer adapt to the current social development.China’s legal system does not have provisions on the effectiveness of the main contract arbitration clause.In order to alleviate the pressure of litigation and better construct a diversified dispute resolution mechanism,the jurisdiction ofarbitration can be appropriately expanded to expand the effectiveness of the main contract arbitration clause to the guarantee contract constraint guarantor.The second part is to discuss the legal basis for the expansion of the main contract arbitration clause to the guarantee contract,and to solve the problem of the lack of theoretical basis.It shows that the validity of the arbitration clause of the main contract extends to the theory of fair and reasonable expectation of the guarantee contract,the theory of presumption of conduct,the theory of related contract and the final system of arbitration,as its legal basis.The third part is to discuss the obstacles and breakthroughs in the expansion of the main contract arbitration clause to the guarantee contract,which is intended to resolve the obstacle situation.This paper expounds the strict written form of arbitration agreement,the principle of autonomy of meaning,the principle of contract relativity,the theory of arbitration independence and the confidentiality advantage of arbitration,etc.,which prevent the validity of the arbitration clause of the main contract from expanding to the guarantee contract.And it is not fundamentally contrary to the basic principles and theories of arbitration to find a breakthrough to prove the expansion of the main contract arbitration clause to the guarantee contract.The fourth part states that China has actively explored and tried to expand the arbitration clause of the main contract into the main contract in the legislation,in the rules of some arbitration institutions and in the cases of judicial supervision of arbitration.It shows that it is feasible to expand the main contract arbitration clause to the guarantee contract in reality.The fifth part analyzes the solution of the main contract arbitration clause to the guarantee contract and gives corresponding suggestions.Analyze the existing three criteria for expanding the effectiveness of the main contract arbitration clause to the guarantee contract,and explore what criteria can maximize the balance between the creditor and the debtor,and give the main contract arbitration clause based on the type of guarantee liability is the most reasonable advice.With the further deepening of China’s reform and opening up,the further opening of the Belt and road construction,the simultaneous dispute of economic growth,the expansion of the effectiveness of the main contract arbitration clause to the guarantee contract binding guarantor is a major driving force to promote the development of arbitration,is an important step in the construction of a well-diversified dispute resolution mechanism in China.