The Analysis Of "Foreign-related" In Spearhead Beijing Co.,Ltd.V.Seagate Shanghai Co.,Ltd.

In recent years,with the development of Chinese foreign trade,the form of foreign investment in China has increasingly complex.At the same time,the traditional standards of foreign-related character identification have been unable to meet the needs of the times.Although,judicial practice began to break through the traditional standards of foreign-related character identification,and the Free Trade Zones have issued provisions to expand the scope of foreign-related elements,there is gap between legislation and judicial practice.The identification of foreign-related character not only decides the cases are internal or not,but also affects the validity of the arbitration agreement.China should modify the standards of foreign-related character identification to respond to new issues raised by judicial practice and perfect Chinese laws about foreign-related civil relationships.This article starts from an case about arbitration agreement validity.In the first part,it introduces the basic situation of this case,and summarizes legal issues in this case involved into two aspects: the identification of foreign-related civil relations and the identification of foreign-related arbitration agreements.The second part discusses the issue about identification of foreign-related civil relations.It introduces the general view of identification foreign-related civil relations,include the concepts,theories and international legislation about the theory of elements of legal relation,general connection and real connection.Then,based on the analysis of this case,it points out the problems caused by the application of the law in this case.The third part discusses the issue about identification of foreign-related arbitration agreements.Firstly,it elaborates on the mainstream theories of identification foreign-related arbitration agreements,and divides the standards into foreign-related civil relations and arbitration agreement elements.Then,it analyzes the issue about the identification of foreign-related arbitration agreements in this case,finds that the judge in this case did not separately identify the issue,but regarded it as a foreign-related civil relations issue.The fourth part puts forward the legislative proposals to improve Chinese law of foreign-related character identification,in light of the problems in this case.First of all,regarding the issue about the foreign-related identification of civil relations.The foreign-related elements shall be increased.It includes: the place of performance,theapplication of foreign law by agreement.Secondly,in view of the foreign-related arbitration agreement identification,legislation should affirm that the identification of foreign-related arbitration agreement is relative independence.And it should establish the relatively independent standards of foreign-related arbitration agreements identification,include foreign-related identification standards of the basic civil relationship,the location of the arbitration and the location of arbitration institution.