expressed through arbitration clauses in contracts or separate agreements; A number of international arbitration bodies provide the parties with exemplary arbitration clauses. Examples of this: Nowadays, many disputes have been chosen because of the simple procedures (compared to court proceedings) and the time saved to settle them in a commercial arbitration. However, before bringing a matter before a board of arbitration, the parties must ensure that the arbitration agreement comes into force so that the board of arbitration can settle it. What conditions must therefore be met for the arbitration clause of a commercial contract to take effect? A person initiating arbitration is a legal representative or a legally authorized person with the scope of the power of attorney. On the 30th. In July 2021, the Ministry of Justice of the People`s Republic of China issued the Amendment to the Arbitration Law (Draft Consultation) (the “Draft Amendment”), the first substantial amendment to the EXISTING Arbitration Law of the PRC (the “Arbitration Law”) in more than two decades. (See previous contributions to the PRC Arbitration Act here and here.) Among the amendments made, this article deals with the relaxed approach of the draft amendment with regard to the validity of the arbitration agreement and jurisdiction. It must also be said that once the intention and agreement of the parties (referral of disputes to arbitration) are reached, the courts will rarely intervene. In fact, courts may and will require a party to follow the agreed procedure set out in the arbitration agreement before communicating with the party.7 Each intervention is carried out with the aim of putting the arbitration back on track. This is consistent with the main objectives of the Act, which aims to minimize the oversight function of the courts in arbitration.
Whether or not the subject matter of a dispute is subject to arbitration is called objective arbitration. If the subject matter of the dispute is not subject to arbitration, the award may be set aside. Under Austrian law, any financial claim falling within the jurisdiction of the courts may be the subject of an arbitration agreement. An intangible claims arbitration agreement is legally valid to the extent that the parties can reach an agreement on the dispute. Examples of issues that cannot be submitted to arbitration include (i) family law issues such as divorce, inheritance or adoption, personal or marital status disputes; and (ii) public litigation such as criminal cases. The reforms introduced in the draft amendment follow existing international practice. The Model Law and some national laws similar to the Model Law treat the validity of the arbitration agreement fairly liberally, and the criteria applied are simple as to whether the parties clearly intended to arbitrate and whether the parties` agreement on the arbitration was established “in writing”. Nothing in paragraph 30.5(a) indicates that the arbitration takes precedence over the dispute or that the party moving first takes precedence over the party moving last. To be interpreted in such a way that there is a right to perform the arbitration, it would have to either operate on a first-past-the-post basis principle, with the person requesting arbitration defeating the party deciding to arbitrate, or the arbitration having to take precedence, even if the other party pleads first. I have difficulty attributing to the parties the intention that this should be the case, because both are not satisfactory.
The first favours a race and the second has the unsatisfactory consequence that the party that ruled on a dispute would have taken a measure to which it was entitled at the time, but will then be punished if the other party subsequently chooses arbitration; see InfraShore Pty Ltd v Health Administration Corporation [2015] NSWSC 736. Compared to litigation, arbitration is relatively inexpensive, short and confidential. Courts generally refuse to overturn arbitral awards and can intervene to ensure that they are enforced. This means that arbitration leads to final outcomes that allow the parties to move forward while avoiding the public scrutiny that can accompany court proceedings. The SCC`s interpretation was indeed helpful, but it did not resolve the issue from scratch – it could not amend the Arbitration Act. The third condition for the validity of the arbitration agreement therefore remains. According to the SCC`s interpretation, many arbitration agreements were still found to be invalid because they had not appointed an arbitration board. A court hearing an action in a case that is the subject of an arbitration agreement shall, if a party so requests no later than the time the party makes the first statement on the content of the dispute, refer the parties to arbitration, unless it determines that the agreement is void, ineffective or unenforceable. The parties must also decide whether to refer disputes to an arbitration institution instead of ad hoc arbitration. .