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The above problems also exist in the arbitration practice of China. Article 19 provides the arbitration tribunal has the power to confirm the validity of the contract. Article 20 makes parties own the right to request the people’s court make a judgment. When one party requests that the arbitration commission make a decision while the other party requests that the court make a decision, the court will make a final judgment. From this provision, it is easy to see an old principle, which is the position of litigation is still higher than arbitration. Of course, we have to notice that this principle is going to be changed gradually. An important change is the reduction of the court’s jurisdiction from the “full power” to “procedure examination only”. Some experts suggest adopting the worldly recognized competence-competence principle, which means that the jurisdiction of an arbitral tribunal shall be decided by itself not by an arbitration commission or a law court in the arbitral procedure as it was now. The international practice proves that the competence-competence principle is good for improving efficiency of arbitration. It is already sufficient that courts have control on arbitration after an arbitration award is rendered. At this point, we may adopt Article 16 of the Model Law to let the tribunal decide on the jurisdiction issue and the courts exercise their control at a later stage even after the arbitration award has been made. Meanwhile, it shall also be specified in the future arbitration law that before an arbitration procedure starts, unless the parties refer their disputes over property to litigation at the same time, the courts shall not accept the request of the parties challenging solely the validity of an arbitration agreement. To be reasonable, it is valuable to decide on the validity of an arbitration agreement only in the course of arbitration or litigation. Otherwise it is a waste of judicial resource to request the court to decide solely on the issue of validity of an arbitration agreement when none of the parties have referred to arbitration or litigation. It is not necessary for the protection of the substantial rights and interests of the parties.
IV. Conclusion
This essay explored the legal principles of validity of arbitration agreement that give the arbitral process its obligatory force under Model Law: the rules of law that give authority to the actions and decisions of international arbitrators. It examined how parties may validly establish such authority by contract. An arbitration agreement is valid if it complies with the conditions of either the law chosen by the parties, the law applicable to the substance of the dispute; and if it own the substantive requirements, and made the crucial procedural options. Except the above issues, autonomy of the arbitration clause, the place of arbitration, multi-party disputes, language and others all affect the validity of arbitration agreement. These issues are important theoretically, but their intellectual complexity should not obscure the fact that in most arbitrations the validity of the agreement is not an issue.
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