论国际商事仲裁协议的准据法

On the evidential method in arbitration agreement for international commercial affairs

国际商事仲裁协议的特点决定了它不能适用普通的合同法律适用规则,必须有自己的冲突规则来指引准据法的选择。意思自治的原则同样适用于仲裁协议,而且在当事人无明示选择仲裁协议所应适用的法律时,适用仲裁地法被广泛接受。中国在国际商事仲裁协议准据法方面存在着许多问题,需尽快解决。

The characteristics of the arbitration agreement for international commercial affairs determine that such an agreement cannot be applied with the rules appropriate to those general laws of agreement, but should instead have its conflict rules to guide the choice of evidential method. The principle of purported autonomy is also appropriate to the arbitration agreement. When the concerned person has not any clear option for the laws applied to the arbitration agreement, the location principle for the arbitration is generally accepted. There are many problems for China in the evidential method of international commercial affairs to be resolved as soon as possible.