“The parties to the agreement referred to in article II, were under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon under the law of country where the award was made”.
　　This statement implies three approaches to the laws governing the capacity. The first is left to the said agreement. The second is referred to the law of the country where the award was made. The third is the law respectively applicable to them. That is to say, primarily, each party’s national law as applicable law, which is involved through the conflict rules, governs its capacity respectively. In other words, if a party is sitting in a seat of incapacity when he participates in an international commercial transaction, under his domestic or national law, he is in the same situation failing to effect the arbitration agreement.
　　When the applicable law chosen by the agreement or, in absence of choice, under the law of country where the award was made, the agreement is possibly not valid because of incapacity. For example, a Greek male, below 16 years old, as one party of the agreement, submits an international trading dispute to arbitrate in Scotland and chooses the Scottish law as the applicable law, he will not be awarded the qualification of capacity by the Scottish statute.
　　2.The law governing the agreement and performance of the agreement　
　　An agreement to arbitrate is the fundamental document to give rise to arbitration. No valid arbitral process starts itself in the ICA without this agreement.　The agreement could be a clause (or clauses) in the principal contract or a separate one. In practice, the later often arises to deal with an existing dispute, because parties would prefer to take more considerations to choose a suitable governing law for the matters having come into sight, therefore the governing law of agreement possibly tailored together with the law governing the substantive issues.

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