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Affirmation on the Effectiveness of Hybrid Arbitration Clause in the International Commercial Arbitration - from the perspective of legislation and judicature in Chinese mainland

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2015, (14), pp.1-18
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law

侯国跃 1 谢鹏 2

1西南政法大学民商法学院教授
2赵重庆坤源衡泰律师事务所管委会主任

Candidate

ABSTRACT

Affirmation on the Effectiveness of Hybrid Arbitration Clause in the International Commercial Arbitration - from the perspective of legislation and judicature in Chinese mainland HOU GUOYUE·XIE PENG Chinese mainland has already recognized that the Higher People’s Court and the Supreme People’s Court have the exclusive judicial power over the effectiveness of the international commercial arbitration clauses. The proper law applying to affirm the effectiveness of hybrid arbitration clause shall be in accordance with the following order, namely the laws agreed upon between the parties, the laws at the place of arbitration, and the laws at the locality of the court. From the perspective of legislation and judicature in Chinese mainland, the critical elements which affect the hybrid arbitration clause are arbitration intention, arbitration matter and arbitration institution, but not arbitration rules. To evade the legal risks in the international commercial contract, this paper provides following advises. The hybrid arbitration clause shall be applied prudently in the contract. Whether the arbitration rules contain provisions relating to the exclusive use shall be well examined. Whether the arbitration rules involve the provisions which limit the modification of stipulation shall be concerned. And the accurate expression with regard to the arbitration institution, arbitration rules and proper law in the contract shall receive adequate attention.

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