违反一裁终局原则对仲裁协议效力的影响:基于中国实践的实证分析

The Effect of Violating the Principle of Finality of Arbitral Award on the Validity of Arbitration Agreement:Empirical Analysis Based on the Practices of PRC

一裁终局是商事仲裁制度的一项基本原则,即裁决作出后当事人不能就同一纠纷再次申请仲裁或者向法院起诉或者上诉。但实践中不乏当事人在协议中约定将争议提交仲裁,并可对仲裁结果再次申请仲裁或向法院起诉、上诉。此类协议通常被认为违反一裁终局原则,其效力存在不确定性。当事人以违反一裁终局为由申请认定仲裁协议无效时,仲裁庭或者法院应根据合同部分无效的法理及支持仲裁的政策,除去违反一裁终局原则内容后认定仲裁协议继续有效。

Finality of arbitral award is a basic principle of commercial arbitration according to which, if a party applies for arbitration to an arbitration commission or institutes an action in a court regarding the same dispute after an arbitration award has been made, the arbitration commission or the court shall not entertain the application. However, there are in practice some cases in which the parties not only agree to submit the dispute to arbitration but also agree to submit the arbitral award to the same or another arbitration commission or a court for appeal in the same agreement. The validity of this kind of agreements is uncertain for they are generally considered to violate the finality of arbitral award. When the party challenges the validity of these arbitration agreements on that basis, the arbitration commission or the court, based on the jurisprudence of partial invalidity of contract and the policy in favor of arbitration agreements, should hold that the arbitration agreement is still valid while setting aside the part that contravenes the finality of arbitral award.