| As the cornerstone of international commercial arbitration,it is considered to be the beginning of international commercial arbitration.It can be said that there is no arbitration without arbitration.The traditional arbitration agreement is symmetrical,that is,the two parties reach an agreement by means of an autonomous agreement,and they are free to choose arbitration to resolve commercial disputes.However,with the development of the global economy,the content of the arbitration agreement between the two parties has also shown diversified development.It has made certain breakthroughs to the traditional symmetric commercial arbitration agreement,and also brought corresponding problems.The probability of asymmetric arbitration agreements appearing in the practice of commercial trade in various countries is increasing,and the determination of the effectiveness of asymmetric arbitration agreements varies from country to country.In order to recognize the effectiveness of asymmetric arbitration agreements,this dissertation will discuss the following on the basis of a large number of foreign jurisprudence:This dissertation is divided into four chapters.The first chapter gives an overview of the asymmetric arbitration agreement,and introduces the meaning,characteristics,classification of the asymmetric arbitration agreement and the reasons for the parties to choose the asymmetric arbitration agreement.The second chapter analyzes the impact of the effective requirements of the arbitration agreement on the effectiveness of the asymmetric arbitration agreement.Analyze the effectiveness of asymmetric arbitration agreements by applying the formal and substantive elements of commercial arbitration agreements.Emphasis is placed on two substantive elements of genuine intention of arbitration and mutuality.In the genuine intention of arbitration part,we first analyze the doubts about the existence of true agreement under the asymmetric arbitration agreement.Secondly,the analysis of the genuine intention of arbitration does not constitute an obstacle to the determination of the effectiveness of the asymmetric arbitration agreement.The reciprocal part first analyzes the limitations of mutuality on asymmetric arbitration agreements.Secondly,it analyzes the breakthrough of the asymmetric arbitration agreement on mutuality.The third chapter measures the effectiveness of asymmetric arbitration agreements through the principles of meaning autonomy and fairness.Firstly,it analyzes the general limitation of the principle of autonomy in the field of arbitration agreement.Secondly,it analyzes the consistency between the asymmetric arbitration agreement and the principle of autonomy.Then,the limitation of fairness to asymmetric arbitration agreement is analyzed.Finally,the consistency of asymmetric arbitration agreement with fairness principle is analyzed.The fourth chapter is about the status and improvement of the legal system for the effectiveness of asymmetric arbitration agreements in China.By analyzing the status of legislation and judicial practice of asymmetric arbitration agreement in China,the author puts forward the necessity of constructing asymmetrical arbitration agreement system in China,and puts forward suggestions from both parties and legislation.It is necessary to fully respect the autonomy of the parties.Moderately break through existing legislation and affirm the effectiveness of asymmetric arbitration agreements.Or modify and improve the Arbitration Law in the future development,and affirm the effectiveness. |
