Review On The Extension Of Validity Of Arbitration Agreement In International Commercial Arbitration

With the increasing frequency of international civil and commercial exchanges, the increasing penetration of commercial activities, and the massive emergence of international commercial disputes, international commercial arbitration, a vital system to solve disputes, is increasingly getting concentrations from the international community. Simultaneously, international commercial arbitration also confronts a lot of theoretical and practical hindrance which need studying and settling in its own development process. Modern arbitration has lost the early simplicity and become complexity, legalization, and Institutionalization; however, the essence of arbitrations is unchanged and the willingness of parties is still the most important factor in arbitrations. The policy, respecting the arbitration will of parties and giving the validity to arbitration agreement as much as possible, has been widely established within international sphere. International arbitration agreement is the most fundamental issue in the field of international commercial arbitration, and no matter whether the launch of arbitration proceedings or the implementation of arbitral awards takes an arbitration agreement as a prerequisite, therefore, the arbitration agreement is named cornerstone and soul of arbitrations. In terms of contents of arbitration agreements, parties just show their arbitrational intents and arbitration clauses shall be effective according to legislations and practices of majority of the countries. As far as the form of arbitration agreements is concerned, with arbitration agreements possessing the procedural effect to obstruct lawsuits, it proves to be a popularly accepted rule in international and national legislations and judicial practices that arbitration agreements must possess written forms. On basis of the above, we could deduce that one party will not be subject to an arbitration agreement naturally if he/she/it does not sign the written arbitration agreement. Nevertheless, social economic life is full of complexity and diversity, hence, dogmatic requirements in strict consensus between parties engaged in arbitrational activities and parties concluding arbitration agreements will fail to solve the complex and changeable practical problems. If an arbitration agreement is broadly interpreted starting from the angle of encouraging the development of arbitrations and protecting reasonable interests of all parties, the arbitration agreement will exert an effect on the parties who fail to sign.This paper, by analyzing the theoretical basis of effectiveness of expansion of arbitration agreements, will have a try to introduce the practices of effectiveness of expansion of international arbitration agreement in order to draw the legal hindrances and solutions, to probe into the factual result of effectiveness of expansion of arbitration agreements, and to finally sum up theoretical basis and systematical protection of effectiveness of expansion of international commercial arbitration agreements and propose rationalized suggestions to China's relevant arbitrational systems.This paper consists of the following five chapters;Chapter one puts a summary to effectiveness of expansion of international commercial arbitration agreements. Author, beginning from analyzing the concept, content, legal characteristics and nature of international commercial arbitration agreements, discusses the force of laws of international commercial arbitration agreements, and stresses the analysis on source and expression of effectiveness of international commercial arbitration agreements in order to endeavor to explain rationally effectiveness of expansion of arbitration agreements at the foundation of comprehensively understanding and grasping essential characteristics of international commercial arbitration agreements.Chapter two searches for the focus of disputed issues based on analyzing legal hindrances of effectiveness of expansion of international commercial arbitration agreements. As for this part, author will refer to the problem concerning written form of arbitration agreements, the principle of autonomy of the will, arbitration raid, the principle of relativity to contracts, and the principle of the independence of the arbitration agreement as well as practical obstacles of effectiveness of expansion of international commercial arbitration agreements---arbitration supervision system.Chapter three penetrates into discussing theoretical basis of effectiveness of expansion of international commercial arbitration agreements, and seeks after the cause of that from the deep level of theory. This part provides the echo and solution for problems raised by hindrances of effectiveness of expansion of arbitration agreements, and its main contents contain the principle of fair and rational anticipation, the principle of estoppels and the principle of negating a legal person, agent theory, and the theory of contract for the transfer.Chapter four gives an introduction of other circumstances and embodiments of effectiveness of expansion of international commercial arbitration agreements and adopts the studying method from classification analysis to final induction summary to analyze the following four issues:The first is the binding nature of arbitration agreements under the circumstance of subrogation to claim; the second is that of arbitration agreements under the circumstance that parties engaged in arbitrations are merged and split; the third is the binding force of arbitrational clauses signed by subsidiaries and branches upon their respective parent corporations; the fourth is the biding force of arbitrational clauses about bill of lading upon the third party under the circumstance of the transfer of bill of lading.Chapter five expounds China's practice of effectiveness of expansion of arbitration agreements and perfection of the relevant systems, including arbitration agreements stipulated strictly by China's arbitration act and their corresponding amendment suggestions offered by it, along with China's arbitration supervision system, that is, the practice and perfection of the system of validity demurrer of arbitration agreements and the system of revocation or no execution of the arbitration award.