Research On Determination Of Validity Of Arbitration Agreement

In arbitrations,the decision on the validity of arbitration agreement directly decides whether the arbitral tribunal has the authority to proceed with the arbitration procedure.The determination of validity of arbitration agreement mainly involves issues about the competent authority,the applicable laws and the necessary elements of a valid arbitration agreement.Regarding the competent authority,there are drawbacks in our legal system to grant the authority of determining to arbitration institutions rather than arbitral tribunals,so in the initial period of arbitration procedure,we shall adopt the approach of granting the authority of determining to courts and arbitral tribunals.Regarding the applicable laws,it is necessary for China to clarify the concept of "place of arbitration" and specify how to locate the "place of arbitration" in the "Arbitration Law of People’s Republic of China" so as to avoid misapplication of lex arbitri due to the inconsistency between different laws and law practices on the concept of "place of arbitration".Last,regarding the necessary elements of a valid arbitration agreement,based on one-by-one analysis to each element,this dissertation reaches the following conclusions:first,in order to determine the existence of parties’ common intention,the applicable regulations to the determination of validity of a standard arbitration clause shall be clarified;second,although both arbitrability and validity influence the arbitral tribunal’s jurisdiction,they are two separate and independent issues,hence,arbitrability should not be set as a compulsory requirement for arbitration matters;third,even though in some arbitration agreements,several arbitration institutions are agreed,those arbitrations agreements still clearly show parties’ common intention of applying for arbitration and they also can be well executed by applying the principle of "action first" in practice,so such arbitration agreements shall also be deemed as valid;fourth,arbitration agreements which deny the final and binding effect of arbitration reveal parties’ common intention to apply for a non-final arbitration but fail to prove parties’ common will to commit to a final arbitration,thus,such arbitration agreement shall entirely be deemed as invalid rather than that only the contents about arbitration award’s final effect are invalid but the contents about applying for arbitration remain valid.