The Study on the Effectiveness of Arbitration Clauses in International Commercial Arbitration – From the Perspective of Contract Non-Formation

Abstract

This study belongs to a more specific project, aiming at exploring the issue of the validity of arbitration clauses in international commercial arbitration when the main contract is not established, and addressing the issue of determining the validity of arbitration clauses in transnational commercial disputes to provide commercial operators, arbitrators or judges with guidelines and references for their ideas. This study is based on the classical jurisprudence of private international law, common law, and international commercial arbitration. Furthermore, based on the customs of international commercial transactions and the contents of the cases, it conducts legal doctrinal analysis, comparative analysis, and case analysis. From different perspectives, these legal norms and issues reflect that the arbitration clause has considerable independence and can typically be established independently of the main contract. The validity of an arbitration clause is based on sufficient formal and substantive elements. The study points out that the determination of the validity of the arbitration clause has its logic of the decision, and it should also apply the process of conclusion of the contract, which includes the conditions of the voluntary agreement of the parties, the process of invitation and negotiation, and the true intention of the parties. Keywords: Autonomy of Will, Independence, Arbitration Clause, Contract