Study On Extraterritorial Arbitration Of Commercial Disputes Without Foreign Factors

China’s existing laws and regulations has not been clearly stipulated no foreign-related factors commercial disputes the effectiveness of the scope of the arbitration agreement,before 2015,people’s courts at various levels in the judicial practice in the review of such special arbitration cases,usually in our country there is no specific provision in the law and to deny,in 2015,"Siemens international trading(Shanghai)co.,LTD.V.Shanghai gold real estate co.,LTD" application for recognition and enforcement of foreign arbitral awards(hereinafter referred to as "Siemens"),Shanghai municipal first intermediate people’s court(hereinafter referred to as the "mobile service in Shanghai")on the basis of the Supreme People’s Court and determination of the reply that the case in the final trial,The subject involved in this case and the characteristics of contract performance have foreign elements.The arbitration agreement agreed between the parties shall be valid and the foreign arbitration award shall be recognized and enforced.The trial of the case as a result,promoted the Supreme People’s Court in 2016 "about the experiment in free trade zone construction to provide the opinion of the judicial safeguard"(hereinafter referred to as the "2016 opinion"),published in 2018 "about to hainan comprehensively deepen reform and opening up to provide legal services and security advice"(hereinafter referred to as the "2018 opinion"),from two views have no foreign element controversial agreement outside the rules of the arbitration,the limit of this kind of special cases in legislation in our country gradually relaxed.When determining factors concerning foreign affairs,is different from the traditional "three elements of legal relation",but a fine analysis of relate more factors,the subject range from 2016 opinions of both sides for the free trade area(hereinafter referred to as the "free trade area")was incorporated in a wholly foreign owned enterprise,expand to the free-trade area or free trade port in accordance with the law all the principals.It is of great significance to analyze the validity of the arbitration agreement in the extraterritorial arbitration of commercial disputes without foreign factors.The arbitration agreement is a kind of dispute settlement method that the parties of a transaction agree on the basis of autonomy of will,and the dispute arising from the performance of the main contract is submitted to the arbitration institution for arbitration.It is the basis of arbitration activities.The analysis of the applicable applicable law under the guidance of the conflict norms of arbitration agreement is the premise of judging the effectiveness of arbitration agreement.The applicable law of arbitration agreement and the applicable law of the master contract belong to two different situations.Arbitration follows the principle of independence,which is different from the master contract,and the applicable law of the arbitration agreement is also independent of the applicable law of the master contract.The two should be judged separately and should not be confused.As for disputes without foreign-related factors,it stipulates the conflict norms of the effectiveness of arbitration agreements in extraterritorial arbitration,and distinguishes two different outcomes whether cases have foreign-related factors.If there is no foreign element in the case,there is no question of applying the conflict norm to determine the applicable law,and the case shall be treated as a domestic ordinary arbitration case.For cases involving foreign elements,the determination of the validity of an arbitration agreement shall be based on the provisions of the Code for Conflicts of the Validity of Arbitration Agreements in Paragraph 1(a)of Article 5 of the New York Convention,which is consistent with the application of the New York Convention to the recognition and enforcement of foreign arbitration awards.There is no foreign element disputes agreed by the parties outside the arbitral award apply to court for recognition and enforcement in mainland China,shall abide by the relevant provisions of the New York convention,especially in the case involving arbitration agreement does not exist or is invalid,and apply public policy impact on the award of the arbitration in the recognition and enforcement,especially to apparent violation of public policy and not clear whether the special cases of violation of public policy.Under the guidance of the "One Belt And One Road" policy,it pays attention to the development of the rule of law practice that there will be no foreign factors in the pilot free trade zones and free trade ports to agree on the arbitration outside the territory,strengthens the foreign commercial trial,innovates the trial method,provides a more open environment for the construction of international commercial arbitration in China,and promotes the establishment of an open economic system.