仲裁协议的效力基础及其要件重构——从最高人民法院指导性案例196号切入

The Basis of the Validity of Arbitration Agreement and the Reconstruction of Its Requirements:With Focus on the Guiding Case No.196 Decided by the Supreme People's Court of the People's Republic of China

根据“法无禁止即自由”的私法精义,当事人的意思自治是仲裁协议效力的积极来源,国家法律是仲裁协议效力的消极来源,二者均为仲裁协议的效力基础。尽管仲裁协议是否成立受当事人意思自治的影响,但长期以来,中国部分法院在仲裁司法审查实践中未用“仲裁协议成立”作为仲裁协议效力的判断标准。此种做法的本质,源于部分法院仅将国家法律作为仲裁协议的效力来源,忽视意思自治在仲裁协议效力来源中的基础性地位。为了解决由此造成的仲裁司法审查不周延的问题,应该根据法律行为基础理论将意思自治和国家法律均作为仲裁协议的效力来源。在此基础上,“仲裁协议成立”系对当事人意思自治的固定,而“仲裁协议有效”系对当事人意思自治的限制,二者的内涵均围绕当事人意思自治展开,在效力基础上具有统一性,这也是二者均属于“仲裁协议效力”文义范围的根本原因。此外,为了贯彻法律行为以有效为常态、以无效为例外的理念,还可以将仲裁协议的有效要件进一步区分为生效要件和效力阻却事由。在此基础上,仲裁协议效力“成立要件+有效要件”二分的方法,可以被更精细地重构为“成立要件+生效要件+效力阻却事由”三分的方法。

According to the essence of private law that “what is not prohibited by law is permitted”,the autonomy of the parties' intentions is the positive sources of the validity of arbitration agreements,while national law serves as the negative sources of the validity of arbitration agreements.Both are fundamental to the validity of arbitration agreements.Although the formation of an arbitration agreement concerns the actual formation of the parties' autonomy,some courts in China have not considered “the formation of arbitration agreements” as the basis for determining their validity in arbitration judicial review practices.This approach stems from some courts only considering national law as the source of the validity of arbitration agreements,ignoring the foundational role of autonomy in the construction of arbitration agreement validity.In order to address the problem of inadequate judicial review of arbitration caused by this approach,it is necessary to return to the contractual nature of arbitration in the context of its internationalization,considering both autonomy and national law as sources of the validity of arbitration agreements based on the theory of civil juristic acts.On this basis,the formation of an arbitration agreement is a manifestation of the parties' autonomy,while the effectiveness of an arbitration agreement limits the parties' autonomy.Both revolve around the autonomy of the parties and have unity in terms of validity,which is the fundamental reason why both belong to the scope of “the validity of arbitration agreements”.Furthermore,to implement the idea that civil juristic acts should be effective as the norm and ineffective as the exception,the criteria for the effectiveness of arbitration agreements can be further differentiated into conditions for the requirements of validity and facts and causes preventing effectiveness,based on positive and negative criteria.On this basis,the method of dividing the effectiveness of arbitration agreements into “conditions for the formation of the contract plus conditions for the effectiveness” can be further refined into a method of “conditions for the formation of the contract plus conditions for the requirements of validity plus facts and causes preventing effectiveness”.In conclusion,the formation of the effectiveness of arbitration agreements lies in the autonomy of the parties,with both autonomy and national law serving as sources of effectiveness.By adopting a more refined approach to assessing effectiveness,which considers both the formation of and the requirements of validity of arbitration agreements,along with facts and causes preventing effectiveness,a more comprehensive understanding and application of arbitration law can be achieved.