国际商事仲裁条款独立性问题研究

我国仲裁立法与实践已普遍接受仲裁条款独立性原则,但地方法院在此问题上有竞争仲裁管辖权的观念。我国由仲裁委自裁管辖,且在与法院的管辖权发生冲突时,法院的裁定优先,这与国际仲裁惯例不相吻合,因此,要在立法及实践上改变这一做法。

A Study on Severability of International Commercial Arbitration Clause

Although the severability principle of arbitration clause has been adopted in the arbitral legislation and practice of China, some local courts still hold the idea of competing for arbitral jurisdiction. In our country, the board of arbitration owns competency right, but when it conflicts with the jurisdiction of courts, the priority of courts' judgement doesn't agree with the international practice . Therefore, it is the author's point of view that the legislation and practice of commercial arbitration should be improved and perfected.