| The principle of “Writing” of arbitration agreement is the basic principle established by the legislation of many countries.According to this principle,an effective arbitration agreement must be written on paper and signed by the parties.As a kind of contract,arbitration agreement is only binding on the signatories because of its relativity.However,the arbitration system plays a more and more important role in the parties’ dispute settlement because of its inherent advantages such as autonomy,professionalism,secrecy and implementation.With the development of arbitration legislation and practice in various countries,especially the breakthrough of the principle that a contract is valid only for the signatory,the arbitration agreement can be effective to non-signatories in some cases,that is,the expansion of the effectiveness of the arbitration agreement.In this context,articles 8 and 9 of the interpretation of Arbitration Law of our country stipulate that the arbitration agreement is valid to the successor and the assignee under the circumstances of the death of the natural person,the merger and division of the enterprises and the assignment of the creditor’s rights and obligations agreed between the parties,etc.,this is the first time that the effect of arbitration agreement is extended to non-signatory party in our legislation.However,the issue of whether the arbitration agreement signed between the insured and people causing the insurance accident is valid for the insurer in the insurance dispute has not been clarified in our country’s legislation,the judiciary have had different views on the issue,and there have been several responses from the Supreme Court,article 98 of the Supreme Court’s 2019“minutes of courts’ conference on civil adjudication” affirms that the arbitration agreement is valid for the insurer under such circumstances,but only legal or judicial interpretation can be used as the basis for the court’s decision,the “minutes of courts’ conference on civil adjudication” is not one of these.The blanks in legislation and the disunity of judicial decisions increase the cost of exercising the rights of insurance claimants,which is not conducive to the settlement of insurance disputes.The first part of this paper shows the types of arbitration agreements in insurance disputes and the legislative blank of the validity of arbitration agreement to insurer,it is pointed out that the topic discussed in this paper is whether the validity of the arbitration agreement signed between the insured and the people causing the accident is related to the insurer.The second part is about the theory and practice of the validity of the arbitration agreement to the insurer: in theory,most scholars hold positive views on this issue,but there are some differences in the concrete argumentation basis,in the judicial practice,there are some opinions that support,oppose or even do not respond to this question.The third part makes a comparative analysis of the problems to be discussed in this paper with the system of insurer’s right in extraterritorial insurance and the similar system in our country,it is pointed out that although the common law countries and civil law countries have different views on the nature of the insurer’s right,in both theory and practice,the insurer should be bound by the arbitration agreement between the insured and other people.From the analysis of the similarity between the jurisdiction agreement and the arbitration agreement,and the difference between the insurer’s right and the creditor’s right,we can draw a conclusion that the arbitration agreement should bind the insurer just like the jurisdiction agreement,the creditor is not bound by the validity of the arbitration agreement between the debtor and the sub-debtor.Finally,this article analyzes the legitimacy of the arbitration agreement to bind the insurer,this paper argues that the insurer should be bound by the validity of arbitration agreement from four aspects: the expansion of the effectiveness of arbitration agreement,the inevitable result of legal assignment of creditor’s rights,the principle of justice and reasonable expectation,and the principle of estoppel. |
