Study On The Expansion Of The Validity Of Arbitration Agreements

Arbitration agreement occupies the core position in arbitration procedure,and its validity is the focus of the whole arbitration system.This paper chooses the expansion of the validity of arbitration agreement as the starting point to discuss the validity of arbitration agreement,combines theory with practice,and makes a thorough study of relevant issues by using comparative analysis method.This paper is divided into three parts:The first part elaborates the source of validity,independence and the realistic basis,theoretical basis and necessary limits of the expansion of arbitration agreement.Arbitration agreement is a common expression of will,which excludes litigation jurisdiction by submitting disputes to arbitration for settlement by consensus of both parties.Its effectiveness mainly comes from the party's autonomy of will.Although the arbitration agreement is subordinate to the main contract,the theory of autonomy of arbitration clause,which should be judged independently of its validity,has been generally affirmed by the arbitration legislation and practice of various countries.The need for the development of arbitration practice and the breakthrough of the principle of relativity of contract in theory have become the realistic and theoretical basis for the expansion of effectiveness.However,it should be emphasized that the expansion of effectiveness should be limited to the autonomy of the parties' will.The second part discusses the expansion of the validity of arbitration agreement in three specific situations: contract assignment,subrogation and succession.Contract assignment includes contract acceptance,debt acceptance and assignment of creditor's rights.The "automatic removal rule" of arbitration clause is generally applied to deal with the expansion of the effectiveness of arbitration agreement in the case of contract acceptance.It is recognized that the effectiveness of arbitration agreement in this case extends to the assignee;the situation of creditor's rights acceptance is similar to that of contract acceptance;the arbitration agreement in the case of assignment of creditor's rights is similar to Whether the validity of arbitration agreement can be expanded is controversial,but from the perspective of arbitration practice,it should also be allowed to expand the validity of arbitration agreement in this case.In the case of subrogation claim,there are great differences between theory and Practice on whether the validity of arbitration agreement in the contract between the debtor and the sub-debtor extends to the subrogator.From the point of view that the exercise of subrogation is bound to be subject to the relationship between the substantive rights and obligations of the debtor and the sub-debtor,the validity of arbitration agreement should be allowed to expand in this case.There is a consensus on the expansion of the validity of arbitration agreement under succession and acceptance in both theory and practice.The third part studies the legislation on the expansion of the validity of arbitration agreement in China.In our current legislation,the requirement of written form in the requirements for the effective conditions of arbitration agreement is too strict,which has become a legal obstacle to the reasonable expansion of the validity of arbitration agreement.In addition,the limited situation of the expansion of the validity of arbitration agreement is only involved in judicial interpretation at present,which is difficult to protect the legitimate rights and interests of the parties in the choice of dispute settlement methods to a large extent,and is not conducive to the development and perfection of arbitration legislation and practice in China.Therefore,when amending the Arbitration Law of our country,we should expand the interpretation of the written form of the agreement in the legal provisions,and stipulate that the agreement can be reached in any form and not only be limited to the written signature of the parties,and stipulate the situation of the expansion of effectiveness as comprehensively as possible under the premise of abiding by the principle of Party autonomy.