What Is Contract Arbitration?

An arbitration agreement refers to a written agreement between the two parties that voluntarily submits arbitrable matters that have occurred or may occur to them. The arbitration agreement includes the arbitration clauses entered into by the parties in the contract and an agreement in other written forms that requires arbitration before or after the dispute. An arbitration agreement is a prerequisite for the arbitration commission to accept a case. ^[1]

Arbitration agreement

The concept of arbitration agreement can be understood from the following three aspects:

1. By nature, an arbitration agreement is a contract

It must be based on the willingness, equality and consensus of both parties. The arbitration agreement is a common expression of intention between the two parties, and is a written form in which they agree to submit the dispute to arbitration. So arbitration agreement is a kind of contract.

2. Formally, an arbitration agreement is a written agreement

A general contract can be written or oral. The form of an arbitration agreement is peculiar. This peculiarity requires a written form. There are clear provisions in this arbitration law. "

The arbitration agreement as the premise and basic basis of the entire arbitration activities has the following legal characteristics:

(1) An arbitration agreement can only be concluded by the parties (or multiple parties) with an interest in the contract or their qualified agents. Otherwise, it would not be possible to bind the parties in the event of a dispute over the contract. If the interested party is

1. From the existence of written arbitration agreements, there are three types of arbitration agreements: arbitration clauses,

A complete and valid arbitration agreement must have statutory content. According to our "

The legal effect of an arbitration agreement is the legal binding force of the arbitration agreement. The legal effect of an effective arbitration agreement includes the binding force on both parties, the court, and the arbitration institution.

1. Legal effect on both parties-The legal effect of the arbitration agreement on the parties is as follows:

Legal situation in which the arbitration agreement is invalid

An arbitration agreement is a consensual act in which both parties express their intentions. While the law gives them a certain degree of binding power, it often also clearly stipulates that the mandatory conditions and norms with this binding force are reached. When an arbitration agreement violates these conditions and specifications, the arbitration agreement is invalid. According to our "

An effective arbitration agreement generally has three aspects of legal effect, namely: binding force on the parties,

1. Model format of arbitration agreement in terms of contract dispute resolution

All disputes arising from the performance of this contract shall be settled by the parties through negotiation. If the negotiation fails, they shall be submitted to the _____ Arbitration Commission for arbitration.

2. Model of arbitration agreement signed separately

person A person B:

Both parties agreed that they would submit the xxxxxxxxxxxxxxx dispute to Baoji Arbitration Commission for arbitration.

Signed by both parties (seal)

year month day

Applicant: ___Company

Address: No. ___ Road, ___ City, ___ Province

Legal representative: _____, chairman

Respondent: Company

Address: No. ______ Road, ___ City, ___ Province

Legal representative: _____, general manager

The applicant ___ company (hereinafter referred to as the applicant) and the respondent ______ company (hereinafter referred to as the respondent) signed a "purchase and sale contract" ". The contract stipulated that the "___ brand" liquor produced by the applicant should be supplied to the respondent for distribution. The price of "____ brand" liquor sold by the claimant to the respondent is 160 yuan, and the annual supply shall not be less than 500 pieces. Product quality is the responsibility of the applicant. The first delivery time is 200 ___ month ___ year, the quantity is 100 pieces. After the respondent has paid 60% of the first delivery price on 200 ___ month ___ year 200, the applicant should supply the second batch of liquor within the day of receiving the payment. The warehouse where the applicant is located along No. 112 Yanjiang Road. The contract also stipulates that the respondent shall pay a deposit of 20,000 yuan within one week after the contract is signed. When a dispute arising out of this contract cannot be resolved through negotiation, it shall be arbitrated by the _ Arbitration Commission. On the date of 200 ____ month ____, a dispute occurred due to the performance of this contract, and the applicant applied to ___ Arbitration Commission for arbitration. ___The arbitration commission formed an arbitral tribunal in accordance with the law to conduct the hearing and chaired the mediation.

Based on the principle of mutual understanding and concession, the claimant and the respondent voluntarily reached the following settlement agreement:

I. Cancel the "Purchase and Sale Contract" signed on ____________.

2. The respondent returned 110 unsold "_____" brand liquors, and the respondent was responsible for delivering them to the XX warehouse where the applicant was located. The risk during transportation shall be borne by the respondent.

3. The claimant received a deposit of 20,000 yuan from the respondent, and the applicant will return 10,000 yuan. With this settlement, the claims and debts between the claimant and the respondent were settled.

4. The arbitration fee and property preservation fee of RMB 4,000 in this case have been paid by the applicant. The applicant shall bear RMB 2,000 and the respondent shall bear RMB 2,000. The respondent's burden shall be deducted from the 10,000 yuan that shall be returned to the respondent. The deducted 8,000 yuan shall be paid by the applicant in cash on the day when the respondent accepts and returns the "_____" liquor.

5. This agreement is effective from the date of signature by both parties, in triplicate, each party holds one, and the respondent sends one to the arbitral tribunal. The applicant withdrew the arbitration application within three days after this agreement became effective.

Applicant: _____ Company

Legal representative: _______________

Respondent: _______ Company

Legal representative: _______________

_____year month day

The principle of effective interpretation of arbitration agreement is based on the independence of arbitration agreement. The independence theory of arbitration agreement or the autonomy theory of arbitration clauses consists in treating a contract that includes an arbitration agreement or arbitration clause as a whole consisting of two relatively independent contracts, one of which is a substantive contract, that is, the civil agreement between the parties The substantive rights and obligations correspond to the contract substantive law; the other is a procedural contract, that is, the form of an arbitration agreement or arbitration clause, which corresponds to the contract procedural law. The theory of the independence of the arbitration agreement focuses on the point that if the contract is not established, or has not become effective or has been revoked after the establishment, the validity of the arbitration agreement or the arbitration clause should not be affected.
The independence of the arbitration agreement has not only a theoretical basis, but also a clear legal basis. According to Article 5 of the Chinese Arbitration Law, "If the parties reach an arbitration agreement and one party sues the people's court, the people's court will not accept it, but the arbitration agreement is invalid." There is an arbitration agreement to resolve the dispute between the parties, and one party If the parties submit their dispute to the people's court for settlement, the people's court shall not accept it. Accordingly, a valid arbitration agreement can exclude the jurisdiction of the people's court. What better reflects the independence of the arbitration agreement is the provision of Article 19 (1) of the Arbitration Law: "The arbitration agreement exists independently, and the modification, cancellation, termination or invalidity of the contract does not affect the validity of the arbitration agreement."

books;

1. Chen Zhidong, "International Commercial Arbitration Law", Law Press, 1998 edition.

2. Deng Jie and Liang Huixing, "Research on London Maritime Arbitration System", Law Press, 2000 edition.

3. Gao Fei: "Theory and Practice of China Maritime Arbitration", China People's Publishing House, 1998 edition.

4. Ding Jianzhong, "Foreign Arbitration Law and Practice", China Foreign Economic and Trade Press, 1992 edition.

5. Hu Changqing, "General Introduction to China's Civil Law Debt", Commercial Press, 1934.

6. Liang Huixing, Civil Law Hermeneutics, China University of Political Science and Law Press, 1995.

7. Liu Xilin, "The Settlement and Arbitration System of Economic Disputes", Shanghai University of Finance and Economics Press, 1st edition, 1997.

8. Zhang Binsheng, Chief Editor: New Argument on Arbitration Law, Chief Editor Qi Shujie, Xiamen University Press, 2004.

9. Shi Shangkuan: A General Review of Civil Law, Taipei Chia Tai Press, 1980, Third Edition, p. 38.

10. Tan Bing, Chen Bin, deputy editor, Research on China's Arbitration System, Law Press, 1995.

11. Wu Jie, "Guide to Essentials and Basis of Arbitration Law", People's Publishing House, 2005.

12. Zhang Jianhua, editor: "New Arbitration", China Legal Publishing House, 2002 edition.

13. Zhao Wei, editor: "Theory and Practice of International Arbitration Law", China University of Political Science and Law Press, 1995 edition.

14. Civil Law Research Office, Institute of Law, Chinese Academy of Social Sciences, "Foreign Arbitration Law", Beijing: China Social Science Press, 1982 ^[2]