探析格式合同中仲裁条款的有效性

An Analysis of the Legal Effect of Arbitration Clauses in Formalized Contracts from the Mutual Consent of Parties

随着市场经济的发展,仲裁条款开始出现于格式合同当中,但提供格式合同的一方当事人可以凭借其经济或法律上的优势强制对方当事人非自愿地接受格式仲裁条款。在分析格式仲裁条款的特点、生效障碍及其与实体法条款联系的基础上,提出用程序来检验格式仲裁条款双方当事人之间是否存在真正的合意,从而剥离出缺乏合意的格式仲裁条款并使其无效,以求法律公正。

With the development of market economy,the clauses of arbitration have been more and more provided for in the formalized contract. One party may force the other to accept these clauses without their free will by using its economic or legal advantages. This article, based on the analysis of the characteristics, the obstacles to entry into force of the clauses of arbitration in formalized contracts and its relation with the formalized clauses in the substantial law, proposes using procedures to check whether true mutual consent exists between two parties,thus separating and nullifying the clauses of arbitration in the formalized contracts which lack mutual consent, so as to achieve the justice of law.