|
The content of arbitration agreement may also influence the validity. A clause written in a contract providing as ‘any dispute is to be settled by arbitration in London’ may constitutes a valid arbitration agreement under English law, but a clause as ‘any dispute is to be settled by arbitration in Beijing’ cannot be treated as a valid agreement under Chinese law. Article 16 of Law of Arbitration of P. R. China states that a written arbitration agreement shall, inter alia, designate an arbitration commission. Without a certain designation, the courts would consider the agreement invalid. This is because that China has not accepted ad hoc arbitration and all arbitrations are taken place in different standing arbitration commissions. An arbitration tribunal should be composed of arbitrators or arbitrator who had been listed in a given commission. There might exist several arbitration commissions in Beijing, so an absence of designation would cause arguments between parties.
It was described that the New York Convention was ‘the single most important pillar on which the edifice of international arbitration rests’. Because of the limits of the definition in the Convention and the different interpretations existing in national laws, the requirements of a valid arbitration agreement are likely different from state to state. Some modern arbitration laws have improved the formative validity of arbitration agreements. The parties have more opportunities to choose the good law, as applicable law, which is suitable for their arbitration agreement.
3.The law governing the existence and proceeding of the arbitration tribunal
The law governing the existence and proceeding of the arbitration tribunal is deemed to procedure law in some countries. For instance, in the Chinese law system, the provisions to regulate arbitration were written into the Civil Procedure Law of the P. R. China 1991 and the later statute, the Law of Arbitration of the P. R. China (1994), is cited in the procedure law category of the authoritative law collections. It has no doubt that the arbitration law bears many characteristics of procedure law because they deal with similar matters such as composition of tribunal, time-limits, conduct of procedure, interim measures of protection and so on. For this reason the arbitration law should be separate from the substantive law in an arbitration proceeding. In practice of the ICA, parties usually chose a neutral as the place of arbitration. It means this place has no connection with the place of each party’s business or residence as well as their substantive contractual disputes, so the arbitration law or lex arbitri should be also distinct from the proper law of the contract. This distinction offers the parties an opportunity to make a choice of law to govern the procedure of the arbitration. Although the parties have rights to agree that an arbitration shall be held in a country but subject to the procedure law of another country, this option would be less worthy to be recommended and would be unpractical because the parties would face the difficulty to acquire the assistance of a foreign court to exercise trans-national jurisdiction.
Some arguments called for ‘de-localisation’ that meant neither the lex arbitri nor should the national courts intervene the procedure of arbitration because the parties could devise the rules by themselves. These arguments favoured ‘party autonomy’ but caused danger to reach the fair awards, therefore the recognition and enforcement of those awards. During the proceedings of ICA, a party may request a summons of witness or a writ of property preservation from a national court. In this case, if the parties’ own rules conflicted with the arbitration law followed by that court, it would lead the court to being in a dilemma: where the parties’ own rules were followed and the award would not be considered as domestic award, this award might be challenged in the course of seeking enforcement in this country because of ‘contrary to the public policy of that country’ under Article V 2 (b) of New York Convention; where the existing arbitration law was followed, the award might be challenged because of that ‘the composition of the arbitral procedure was not in accordance with the agreement of the parties’ under Article V 1 (d) of the Convention. Then, if the Convention should be respected, it is safe to the parties to choose the existing arbitration law or lex arbitri as applicable law rather than devise their own rules.
|
