比较法视野下多层次争议解决条款的强制性

The Enforceability of the Multi-tier Dispute Resolution Clause from the Perspective of Comparison Law

决定多层次争议解决条款初始层次的约定强制性问题的管辖权属于多层次争议解决条款最终层次所指向的争议解决机构。多层次争议解决条款初始层次的强制性取决于当事人约定的明确性。未能履行多层次争议解决条款中初始层次约定而产生的违约问题应当被识别为程序问题,守约方当事人据此应当获得程序法而非实体法上的救济。在初始层次约定尚未履行时,法院或仲裁庭应当暂停而非停止已经开始的诉讼或仲裁程序。

The dispute resolution body which is designated by the multi - tier dispute resolution clause in its nnai stage na ttie jurisdiction over the enforceability of the agreement in the initial stage of the clause. The enforceability depends on the affirma- tiveness of the agreement between the disputing parties. The breach of the agreement in the initial stage of the clause is identified as procedural matter, based on which the conforming party is entitled to remedy on procedural law rather than substantive law. Courts or arbitral tribunals should suspend rather than close the litigation or arbitration proceedings when the obligations under the agreement in the initial stage of the clause have not been fulfilled.