Research On Validity Of Extension Of International Commercial Arbitration Agreement

As the structure of international commercial transactions becomes more and more complex,it is no longer possible to limit arbitration to the signatories in front of the letter to deal with the newly emerging complex disputes with multiple legal bodies.In this context,the expansion of the effectiveness of arbitration agreement becomes a trend.Regarding the expansion of validity of arbitration agreement,Chinese arbitration legislation has not made any provision,but enumerates the high frequency of merger separation of companies,death of parties,transfer of debt and debt in the judicial interpretation.On July 30,2021,the Ministry of Justice issued the Arbitration Law of the People’s Republic of China(Amendment)(Draft for Comment)(hereinafter referred to as the Draft Amendment to the Arbitration Law).One of the highlights of the proposed amendment is to add the expanded validity of arbitration agreements in master-slave contracts and shareholder/partner representative lawsuits.But generally speaking,the legislative attitude towards the expansion of arbitration agreement effect is still very conservative.In view of this,it is indispensable to the development of our arbitration system to study the expansion of effectiveness of international commercial arbitration agreement.Specifically,except the introduction,this thesis mainly includes the following four chapters:Chapter one is an overview of the expansion of the effectiveness of international commercial arbitration agreements.This chapter consists of three parts.First,the connotation of the validity expansion of arbitration agreement.This thesis holds that the subject of the validity expansion of arbitration agreement should be defined as "non-signatory party of arbitration agreement",and participate in the arbitration procedure as a party rather than a third party.The third party arbitration system cannot be set up according to the third party litigation system.Secondly,it discusses the necessity of expanding the validity of arbitration agreement.Finally,the main situations of the effectiveness expansion of arbitration agreements in international commercial communication are listed.The second chapter is the realistic dilemma of the expansion of Chinese arbitration agreement.This thesis analyzes the current situation of the expansion of Chinese arbitration agreement effectiveness from three aspects: theory,law and practice.On the theoretical level,it is mainly restricted by the written form requirements,the autonomy of the parties’ will and the relativity principle of contract.At the legislative level,there are some problems,such as the absence of legislation of arbitration law,the lack of systematic legislation and the confusion of arbitration rules.In practice,the judicial adjudication is inconsistent,the scope of expansion is unclear,and the procedure operation is chaotic.Chapter three is about the extraterritorial experience of the effectiveness expansion of arbitration agreements.By combing the extraterritorial legislation of the Netherlands,the United Kingdom,Belgium and other countries,the relevant precedents of the United States,and the arbitration rules of the International Commercial Court of Arbitration(ICC),Singapore International Arbitration Center(SIAC),Hong Kong International Arbitration Center(HKIAC),London International Arbitration Center(LCIA)and other arbitration rules,through comparative research,It intends to find a concrete way to expand the effectiveness of our arbitration agreement.The fourth chapter is the predicament of the expansion of Chinese arbitration agreement.First of all,this chapter breaks through the theoretical obstacles of the validity expansion of arbitration agreement through the broad interpretation of written form,the limitation theory of autonomy of will,the theory of contract relative effectiveness expansion and the principle of fair and reasonable expectation.Secondly,this chapter supports the direct legislation mode,introducing the additional party clause in arbitration legislation and adding the situation of specific effectiveness expansion in judicial interpretation,and setting the backstop clause to improve the formulation of rules.Finally,the problems in practice are corrected by unifying judicial precedents,clarifying the scope of expansion and the operation path of regulation procedures.