The Recognition Of Validity And Remedy Of Pathological Arbitration Agreement Under International Comerical Arbitration

The defective arbitration clause of international commercial arbitration, is a kind ofpathological clause which categorizes lacking general composing elements, the arbitralinclination of parties being ambiguous, the appointments of arbitral body and arbitratorbeing ambiguous, and other defective contents occurring in the arbitral agreements signedby the parties. The defective arbitration clause is binding but unenforceable, the occurrenceof which is not only due to the parties, but also due to the legal environment. Beforeremedied by the arbitral authority or by the court under the law applicable to them, thevalidity of the defective arbitration clause is not complete and comprehensive. Differentkinds of pathological arbitration clause reflects different defects on validity. Whenrecognizing the validity of arbitration agreements, the arbitral authority and the courtshould abide by the proper law which has provided by The New York Convention on theRecognition and Enforcement of Foreign Arbitral Awards and by The UNCITRAL ModelLaw on International Commercial Arbitration. The defective arbitration clause isenforceable after remedied by the parties,by the arbitral authority or by the court, and thiskind of remedy should follow the principles of the law.Finally，contrasting with the theory and practice of the recognition and remedy of thedefective arbitration agreement during international commercial arbitration, the paperdescribes the characteristics of Chinese arbitration agreement legal system, and providessuggestions of legislative details.