Research On The Legal Validity Of Asymmetrical Arbitration Clause

Party autonomy,as the cornerstone of the arbitration mechanism,drives the continuous development of international commercial arbitration.The asymmetrical arbitration clause fully reflects the party autonomy principle and the needs of the business interaction.It has been used in all kinds of commercial contracts,and is most widely used in financial contracts.The asymmetrical arbitration clause only grants one of the parties the right to choose between litigation and arbitration as the forum of dispute resolution after a dispute occurs.It has the characteristics of asymmetry and selectivity.The validity of asymmetrical arbitration clause is on the dispute.To clarify the validity and the issue of the application of asymmetrical arbitration clause will not only help the courts to better deal with the related cases,but also help the parties who trade with foreign businesses to better use the clause.This article first summarizes the current status and development trends of the validity of asymmetrical arbitration clause by examining and comparing the two major legal systems including nine countries,and related cases in Chinese mainland and Hong Kong.Then,this article analyzes the reasons proposed by the courts in various countries(regions) when denying the validity of asymmetrical arbitration clauses.Finally,this article discusses about the issues of how to better apply asymmetrical arbitration clauses,and what necessary restrictions should be added to.This article consists of four chapters except the introduction and conclusion.The first chapter is an overview,which defines the asymmetrical arbitration clause and its extension,and briefly describes its generation and development.The second chapter analyzes the relevant cases of the common law and civil law countries,and finds that most of the countries have recognized the validity of asymmetrical arbitration clause.And the courts in various countries have shown an attitude from negative to positive,and the specialty of Stare Decisis.The third chapter examines the judicial practice in Chinese mainland and Hong Kong,and holds that the courts in both of the jurisdictions have recognized the validity of asymmetrical arbitration clause,which is in line with the mainstream practice in most of the countries(regions) around the world.The fourth chapter analyzes the reasons proposed by the courts in various countries when denying the validity of asymmetrical arbitration clause,pointing out the irrationalities.Then,this chapter discusses the issues of application and necessary restrictions of asymmetrical arbitration clause,while putting up some suggestions for the transnational commercial entities.