论仲裁协议效力的确定与扩张

仲裁协议是整个仲裁制度的基石,本文就仲裁协议在理论和实践中几个容易发生争议的问题阐明了作者的观点。首先,一份有效的仲裁协议必须具备书面形式,信息技术的发展促使新的仲裁协议形式不断涌现。其次,我国仲裁法要求仲裁协议明确约定仲裁机构,这使仲裁协议的成立要件过于严格,并且在实践中造成了理解和适用上的混乱,立法上有待于进一步完善。最后,本文探讨了仲裁协议的扩张问题。当合同被转让或在涉他合同中,仲裁条款作为合同的一部分,其效力就会突破签订协议的双方而对第三人生效。此外出于对公司治理制度的需要,“揭开公司面纱”理论被应用到仲裁领域,仲裁协议效力也扩张至第三人。

Review on the Confirmation and Dilatation of Arbitration Agreement

Arbitration agreement is the fundamental element in whole arbitration system . This article analyses several problems which are disputed in theory and practice. Firstly,an effective arbitration agreement must be written form,with the development of electronic technology,many new arbitration agreement forms come to us. Secondly,Arbitration Act of P.R.C provides that the arbitration commission must be written definitely in arbitration agreement,which is too strict for an arbitration agreement,and results in confusion in arbitration practice,so we need to perfect our Arbitration Act by legislation. Lastly,the author discusses the effect expansion of arbitration agreement. Arbitration agreement clauses as part of a contract will not only affect the two parties who have signed the agreement but also the third party when the contract is transferred to him or the contract is for the third party. In addition,because of the need of corporate governance,the theory of "pierce the corporate veil" is applied to arbitration,the effect of arbitration agreement also expands to the third party.