Comment On The Jurisdiction Objection Case Of Beichen Company And Haicheng Company

In judicial practice,the parties often choose litigation and arbitration in the dispute settlement clauses of the contract,which are usually called "arbitration or litigation" clauses.According to the current legislation of our country,if the parties agree that a dispute can be submitted to an arbitration institution for arbitration or to a people’s court for prosecution,the arbitration agreement shall be invalid.It can be found that the most typical expression of such clauses is: after a dispute occurs due to the performance of this contract,it can apply to an arbitration or bring a lawsuit to the court.However,the true will of the parties to submit arbitration and litigation is often expressed in different forms.Should different arbitration coexistence clauses be included in the "arbitration or litigation" clause? There is no unified view in judicial practice in China.Therefore,it is necessary to further clarify the nature and characteristics of "arbitration or litigation" clauses so as to better identify such clauses.At the same time,the validity of the "arbitration or litigation" clause is different from country to country.Some countries tend to protect the party’s autonomy of will,not directly identify it as an invalid arbitration clause,but give the parties the right to choose to avoid conflicts.In China,even if such clauses are recognized as invalid arbitration clauses by legislation,there are still many differences in the judicial practice on the determination of their effectiveness.In order to solve the problem of ambiguity in the nature determination and rationality in the validity determination of "arbitration or litigation" clauses,first of all,the nature and characteristics of "arbitration or litigation" clauses should be clarified,and the type research should be carried out on the agreements that the parties may involve in "arbitration or litigation" clauses in judicial practice.Secondly,from the perspective of respecting the autonomy of the parties’ will and supporting the development of arbitration,we should learn from the positive factors about the validity of the "arbitration or litigation" clause in foreign countries,explore the real intention of the parties to choose arbitration voluntarily,and try to make it as effective as possible when interpreting the validity of the arbitration clause.