Determining the Validity of Arbitration Agreements in China: Towards a New Approach

Abstract

How to determine the validity of foreign-related arbitration agreements in China remains a hot issue in China in recent years, which covers mainly two topics: who and which law will determine such a question. This article analyses the relevant competent authorities and the conflict rules in determining such a question under the current Chinese legal framework. The author first points out the problems existed in the jurisdiction and conflict rules in determining the validity of arbitration agreements, then examines the deficiencies in the stipulation about the validity of an arbitration agreement in China's Arbitration Law. Based on the analysis, the author suggest that for the sound development of the international commercial arbitration in China, the number and competence of the courts to determine the validity of arbitration agreements be limited; the arbitrail institutions be given priority in determining such an issue when arbitration takes place in China; the conflict rules be drafted in accordance with those contained in the 1958 New York Convention and the opportunity of the application of the lex fori ( the Chinese law) be reduced; when the Chinese law is applicable to the determine the validity of arbitration agreements, the Chinese courts adopt the liberal interpretation instead of the restrictive one. For the long run, the Arbitration Law had better be amended, the competence/competence principle should be completely adopted, the stipulation on the designating of the arbitrail institutions should be deleted, and the party autonomy should be fully respected.