专题三国际商事仲裁协议.docxVIP

专题三国际商事仲裁协议 本专题目的是要求理解并掌握国际商事仲裁协议的性质及其表现形式、仲裁协议的效力及其确定、仲裁条款独立原 则的理论与实践、以及我国有关仲裁协议的效力及其确定的立法与实践。 Key Issues Nature and forms of in ter nati onal commercial arbitrati on agreeme nt Validity of in ter nati onal commercial arbitrati on agreeme nt Legislation and practices on the arbitration agreement in China Secti on 1 Gen eral In troducti on Definition on the arbitration agreement and Forms Agreement between the parties to submit their dispute for the settlement by arbitration : contractual in nature. The arbitration agreement could be reflected either in an independent document in the form of Submission to arbitrati on, or in the form of Arbitrati on clause in a con tract. Secti on 2 Validity of the Intern ati onal Commercial Arbitrati on Agreeme nt and its Determ in ati on Applicable Law for decisi on Agreed by the parties: The validity of arbitrati on agreeme nt could be decided in accorda nee with the law agreed by the parties. Seat of arbitration if any: If the parties failed to reach an agreement as to the applicable law, the law of the seat of arbitrati on, which has closest relati on ship with the arbitrati on, should be applied. Law of the national court: The national court shall decide which law should be applied in a particular case. For example, while national court is asked to enforce the foreign award made in other state, it may refuse to enforce such award if the court con siders the matters as non arbitrable accord ing to the local law. In agreement with Art.5(1)(a) New York Convention: NYC provided that the applicable law for the arbitration agreeme nt should be decided by the n ati on al law based on the parties aut onomy, the n the law of the seat of arbitration and that of the court. Compete nt Authority to Decide the Validity of the Arbitrati on Agreeme nt Arbitrati on Tribun al: based on the doctri ne of compete nce-compete nee. Nati onal Court: Its power comes from the n ati on al law. The Doctri ne of Separability of the Arb. Clause An arbitrat