A Preliminary Study On Implied Arbitration Agreement

Arbitration agreement is a special contract that is indispensable for the opening of the arbitral proceedings when the parties are willing to submit their disputes to arbitration.The New York Convention,as the most important legal basis for the recognition and enforcement of a foreign commercial arbitral award,provides two aspects of the elements of the arbitration agreement and the essential elements of the arbitration agreement.In this regard,the Legislative Council and the court of the State which is the member of the New York Convention,have different views on the "written form" of Article 2 of the Convention.With the development of technology and international commercial arbitration,the appearance of "UNCITRAL Model Arbitration Law" and its Amendment in 2006 for the "written form" means that,the definition of the "formal requirement" become more expansive.The introduction part mainly introduces the background and significance of the topic,the research methods and the academic review of the current situation of legislation and research between China and other countries.The first chapter is divided into four parts.The first part introduces the practices of written form requirement before the New York Convention in different countries.The second part introduces the provisions of the New York Convention on the formal requirements and the third part,from the 1985 UNCITRAL Model Law,analyzes the expansion of the definition of the written form in New York Convention and the response of the countries after the draft of the Model Law.The fourth part deals with the revision of 2006 amendments in UNCITRAL Model Law and the discussion of the concept of "implied arbitration agreement".The second chapter is divided into two parts,respectively,talking about the definition of the concept of "implied arbitration agreement" and the establishment of this type of arbitration with theoretical analysis.The elements of this kind of arbitration agreement are divided into substantive and formal aspects.In the third chapter,the author tries to classify the "implied arbitration agreement" into two types: "active" implied arbitration agreement and "negative" implied arbitration agreement.And each type of the arbitration agreement would be given a tentative analysis in the characteristics aspect and effectiveness aspect.Chapter four discusses the recognition of the validity of the implied arbitration agreement and the problems that are found in the "written form" in China's legislation and judicial practice.From the discussion of “One Belt,One Road” policy,It is important for China to perfect and expand the definition of written form under the concept of implied arbitration agreement,and at last provide legislative recommendations for China authority.