Civil / Huang Tian of office of attorney of heart of Shaanxi be in harmony
The arbitration is independent the issue of main civilian trade issue at civil suit settles way, because its procedure is simple, cut end, confidential sex into parts advanced characteristic, favor in trade issue issue by party. Arbitral agreement is the acceptability action that bilateral party meaning represents to agree, the arbitral clause that in including a contract, concludes and it is with other and written means before dispute happening the asks the arbitration agreement that perhaps reachs after dispute happening. Law set the statutory requirement that arbitral agreement effectiveness should have and essential factor clearly, arbitrate the agreement will be maintained to be otherwise invalid. According to our country " arbitral law " regulation, arbitral agreement is invalid below following scenario:
One, the arbitral agreement that concludes with oral means is invalid.
According to our country " arbitral law " the 16th regulation, the arbitral clause that in arbitrating the agreement includes a contract, concludes and it is with other and written means before dispute happening the asks the arbitration agreement that perhaps reachs after dispute happening. Accordingly, arbitrate the agreement must conclude with written means, the arbitral agreement that concludes with oral means does not get legal protection, do not have jural effectiveness.
2, the arbitral limits of the agreement that arbitrates item exceeds law to set, arbitral agreement is invalid.
According to our country " arbitral law " set the 2nd times with the 3rd, the contract dispute between equal principal part and dispute of other property rights and interests can arbitrate, and marriage, foster, custody, bring up, successive happen between the dispute that because person relation happens,waits and imparity main body, the administrative dispute that ought to handle by the executive authority lawfully cannot arbitrate.
3, the arbitral agreement that perhaps restricts person of civil action competence to conclude without person of civil action competence is invalid.
The legitimate rights and interests of person of the stability that concerns to defend civilian trade issue and protective minor and other incompetence person, limitative conduct competence, law asks the party that signs arbitral agreement must have complete civil action capacity, otherwise, arbitral agreement is invalid.
4, one party takes threatening step, force the other side to conclude of arbitral agreement, should arbitrate the agreement disables.
Of arbitral agreement conclude, must be bilateral party negotiates the true meaning on the foundation to express in equality. And conclude with threatening method and the opposing party arbitral agreement, violated meaning autonomy and freewill principle, concludes arbitral agreement is not the real intention of bilateral party, do not accord with the effective important condition that arbitral agreement establishs.
5, arbitral agreement agrees to arbitrating item perhaps arbitrates committee is done not have or the agreement is ambiguous, party does not amount to compensatory agreement again to this, arbitral agreement is invalid.
Basis " arbitral law " the 16th regulation, the arbitral committee that wants to set arbitral item and make choice of clearly in arbitral agreement, this is the arbitral law main demand to arbitral agreement. If arbitrate be done not have to this in the agreement,agree ambiguous, do not accord with legal and effective important document, should arbitrate the agreement has a flaw. To imperfect arbitral agreement, basis " arbitral law " the 18th regulation, bilateral party can reach compensatory agreement, if fail to reach compensatory agreement, arbitral agreement is namely invalid. Agree with arbitral committee especially in feasibility condition ambiguous most common, bring about consultative both sides extremely easily to generate controversy to the effectiveness of arbitral agreement, top people court about applicable " People's Republic of China is arbitral law " the explanation of a certain number of problems made relevant provision, submit to party attention:
1, the arbitral orgnaization name that arbitral agreement agrees is not exact, but can decide specific arbitral orgnaization, ought to maintain make choice of arbitral orgnaization.
2, the arbitration that arbitral agreement agrees dispute is applicable only is regular, regard as did not agree arbitral orgnaization, but ought to maintain what party reachs compensatory agreement to perhaps can decide arbitral orgnaization according to arbitral regulation of the agreement effective.
3, arbitral agreement agrees two above are arbitral orgnaization, party is OK consultative choice arbitrates the orgnaization applies for the arbitration among them; Party cannot choose those who agree to reach with respect to arbitral orgnaization, arbitral agreement is invalid.
4, the arbitral orgnaization of ground of You Mou of arbitral agreement agreement is arbitral and this ground is only of an arbitral orgnaization, should arbitrate the orgnaization regards arbitral orgnaization of the agreement as. This ground has two above of arbitral orgnaization, party is OK the agreement chooses an among them arbitral orgnaization to apply for the arbitration; Party cannot choose those who agree to reach with respect to arbitral orgnaization, arbitral agreement is invalid.
5, it is OK also that party agreement can apply for the arbitration to arbitral orgnaization already sue to people court, arbitral agreement is invalid. But, if one direction arbitrates the orgnaization applies for the arbitration, other one party was not in arbitral front courtyard first the except of the demur before open a court session.
Professional: Law
