联合国示范法下看仲裁协议有效性
The Validity of Arbitration agreement under Model Law
邓健
【关键词】Arbitration agreement, Model Law, Validity
【全文】
The Validity of Arbitration Agreement Under Model Law
Contents
I. Introduction
II. Substantive Requirements of Arbitration Agreement
1. Definition of Arbitration Agreement
2. Form of Arbitration Agreement
3. Capacity of the Parties
4. Law applicable to the arbitration agreement
5. Arbitrablity
III. Procedural Options
IV. Conclusion
I. Introduction
The last few years have seen an increasing activity by legislators to improve the legal framework for arbitration, both domestic and international. Based the idea of achieving a real “uniformity of the law of arbitral procedures”, the UNCITRAL Model Law on International Commercial Arbitration has indeed turned out to be a model piece of legislation and, like the New York Convention, a marvellous success in international persuasive legislation. It is not only adopted in about 40 countries and regions, but is also used as an important reference for making the law and becomes a standard for judging the legislation in non–Model-Law countries. The UK Arbitration Act of 1996 is a good example. It even affects the domestic arbitration law in some countries.
Meanwhile, arbitration has been or will be playing on import role in the PRC. The international commercial arbitration in China has undergone a process of gradual development. The Arbitration Law of the PRC was adopted on 31 August 1994 and came into force on 1 September 1995. However, in recent years the society and economy have developed so rapidly that some aspects of this law do not seem to cope with the dramatic legal requirements. Therefore, the pace for development of the arbitration system has never been stopped in China. The National People’s Congress is considering amending this Law, some arbitration experts and scholars suggest adopting Model Law, or at least in line with the Model Law.
In light of the fact that “ The Model Law proceeds on the understanding that any arbitration governed by it must be based on an arbitration agreement” , and the validity of arbitration is regarded as a foundation stone of international commercial arbitration. Without a valid agreement , there can be no arbitration. The arbitration commission or arbitration tribunal will not have the power of jurisdiction of the case and the arbitral awards will be set aside by courts, so as not to be enforced at all, to make arbitration frustrated, and to make the arbitration senseless. The way a legal system evokes issues regarding the validity of an arbitration agreement needs to be understood not only in terms of the substantive requirements, but also in terms of crucial procedural options. Therefore, this essay is an attempt to discuss some issues about the validity of arbitration agreement under Model Law from these two parts, also give some attention to some relative arbitration laws and regulations of China. Let us first consider the former.
