Chapter 3 Arbitration Agreement

Definition and Forms Agreement between the parties to submit their dispute for the settlement by arbitration Submission to arbitration Arbitration clause in a contract

Content （ CAL,Art.16) Intention of both parties to settlement their dispute by arbitration Matters to be arbitrated Definite arbitration institution ， excluding ad hoc commercial arbitration tribunal

Matters to be arbitrated Art. 2 of the Judicial Interpretation: Contract disputes refers to the formation, validity, amendment, assignment, performance, liabilities for the breach, interpretation, termination of the contract.

Written Form Judicial interpretation （ Art.1): apart from the contract, it could be expressed in the form of telegraph, telex, EDI, , etc.

Void Arbitration Agreement CAL: Article 17 if an agreed arbitrable matter exceeds the scope of arbitrable matters （ Art.2,3 CAL) as specified by law; if a party that concluded the arbitration agreement has no capacity for civil acts or has limited capacity for civil acts; or if one party coerced the other party into concluding the arbitration agreement.

Art. 7 of the Jud. Interpr. on Invalid arbitration agreement The parties agreed either arbitration or litigation. Unless one party applied for arbitration, the other party failed to challenge of the validity of the arbitration agreement prior to the first hearing of the arbitration tribunal. The parties failed to reach agreement on a definite arbitration institution.

Authority to decide （ CAL20) If a party challenges the validity of the arbitration agreement, he may request an arbitration commission to make a decision or a People's Court to give a ruling. If one party requests an arbitration commission to make a decision and the other party requests a People's Court to give a ruling, the People's Court shall give a ruling. A party's challenge of the validity of the arbitration agreement shall be raised prior to the first hearing of the arbitration tribunal.

Competent Court to decide validity of the arb. Agreement Intermediate people ’ s court where the agreed arb. Commission located; in case of no agreed definite arbitration commission, where the agreement was signed or the parties ’ domicile or place of business located

Applicable Law for decision Judicial interpretation (Art. 16): Agreed by the parties Seat of arbitration if any Law of the national court In agreement with Art.5(1)(a) New York Convention

ICC Model Arb. Clause All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.

ICC recommends the following clause for arbitrations seated in Mainland China after Zueblin All disputes arising out of or in connection with the present contract shall be finally settled by ICC Court of International Arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. rbitration/other/mc_arb_chinese(1).doc

AAA Model Arb. Clause Any controversy or claim arising out of or relating to this contract shall be determined by arbitration in accordance with the International Arbitration Rules of the American Arbitration Association.

The Doctrine of Separability of the Arb. Clause An arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure (L. 依 法律） the invalidity of the arbitration clause.

Art. 16 UNCITRAL Model Law The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.

Harbour Assurance Case （ 76- ） UK Case b/w British co. and Finland co. over reinsurance contract The contract was void without permission from the British authority The invalidity of the main contract does not impeach the validity of the arbitration clause.

Art. 19 of CAL Arbitration agreements shall exist independently. The amendment, rescission, termination or invalidity of a contract shall not affect the effectiveness of the arbitration agreement.

Guangdong Huizhou JV Case JV K between Chinese co. and HK co. Arbitration clause in the K Dispute before the approval the contract by the authority Huizhou Intermediate Ct. ruled on its jurisdiction due to invalidity of the K Decision overruled by the Higher Ct.

Jiangsu co. v. HK and Canadian co. in 1998 Import used electronic machines K with arbitration clause Jiangsu co. applied to the ct. due to fraud contract HK and Canadian co. challenged the ct. jurisdiction The Supreme Ct. replied that the Ct. has no jurisdiction over the case

Judicial Interpretation (Art.10) The arbitration agreement is valid after it is formed but failed came into force or it is revoked.

Heyman v. Darwins,1942 Facts Dispute Judgment by the basic ct. Decision by the ct. of appeal Decision by the House of Lords

Assignment of Arb. Clause Whether the assignee is bound by the arbitration clause in the assigned contract?

Filanto v. Chilewich （ ） Sales K between Chilewich and Russian co. for the supply of footwares Chilewich sent order with the same terms to Filanto, including arb. in Mosccow; Letter of credit opened by Chilewich w/o reply from Filanto Filanto challenged the arb. Clause

MS. Emja CASE （ ） Construction K b/w Ferus （ Dutch shipyard) to build Ms. Emja for Firden (Dutch company) Sales K b/w Firden and German Emja during construction of the ship Ferus sub-contracted Bijlma shipyard Bijlsma contracted Sweddish Wartsila for delivery of the diesel engines diesel engines dispute brought by German Ms. Emja against Swidish Wartsila

Chinese Practices No provision in CAL; Art.8 、 9 of the Judicial Interpretation: The arb. Agreement is binding on assignee while the parties merged or separated. Successor ’ s responsibility Assignment of credits and liabilities

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