确认仲裁协议效力案件的实践观察与规则完善

Observations of Practice and Suggestions for Improvement:Confirmation of the Validity of the Arbitration Agreement in China

确认仲裁协议效力阶段,仲裁机构排除法院判断权应以仲裁机构对仲裁协议效力作出实质性判断为条件。同一当事人不能同时或先后向仲裁机构、法院申请确认仲裁协议效力。仲裁机构认定仲裁协议有效,不影响当事人在撤销或不予执行仲裁裁决程序中再次对仲裁协议效力提出异议。仲裁协议成立问题属于确认仲裁协议效力案件的审查范围。应当允许当事人向法院申请确认仲裁协议有效。在主合同未成立的情况下,宜慎重考察主合同中的仲裁条款是否成立。在仲裁协议成立的情况下,应尽量解释认定仲裁协议有效。

As for the validity of the arbitration agreement,the arbitration institution may obviate the court’s jurisdiction to determine on this issue only if the arbitration institution has made the substantive decision first in this regard.One party is not allowed to apply to both the arbitration institution and the court for confirming the validity of the arbitration agreement,neither simultaneously nor successively.Nevertheless,the arbitration institution’s confirmation on the validity of the arbitration agreement would not deprive parties of the right to challenge the validity of the arbitration agreement during the setting-aside or enforcement proceedings of the arbitral award.The issue of the existence of the arbitration agreement is deemed as subject to review during the confirmation of the validity of the arbitration agreement.The parties should be allowed to request the court to confirm that an arbitration agreement is valid.When the underlying contract has not been formed,it is necessary to examine carefully whether the arbitration agreement in the underlying contract exists separately.If the arbitration agreement exists,the arbitration agreement should be deemed valid as far as possible.