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UM E-Theses Collection (澳門大學電子學位論文庫)

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Title

Pathological arbitration clauses in international commercial arbitration :law and practice in China

English Abstract

Pathological arbitration clauses may lead to the disputes over the validity and enforcement of the arbitration agreement, and subsequently even worse may result in the invocation of arbitration and the enforceability of arbitral awards. But the defects of pathological arbitration clauses are not always fatal. In the words of Eisemann, the inconsistency, uncertainty, and inoperability of terms in the arbitration agreement do not necessarily, or automatically negate the validity and enforcement of the arbitration clause. These defects in most pathological arbitration clauses can be cured through appropriate interpretation according to general and specific principles applicable to arbitration agreements. At international level, national courts and arbitrators with pro-arbitration presumption tend to try their best to salvage pathological arbitration clauses. However, in China, pathological arbitration clauses are often held invalid under Chinese law. Chinese law’s divergence in this regard makes China anomalous in the global pro-arbitration trend. The thesis explores the legal problems inherent in the current Chinese arbitration law and practice regarding the validity of pathological arbitration clauses in foreign-related arbitrations. The exploration starts from three legal problems: Who shall determine? What is the applicable law? What are the legitimate interpretative approaches? The thesis argues that Chinese arbitration law should incorporate the competence-competence doctrine to establish and strengthen the arbitral tribunal’s jurisdiction to determine the validity of pathological arbitration clauses. Besides, a liberal interpretation approach on the basis of internationally-recognized general and specific principles of interpretation should be adopted when people’s courts and arbitrators are called upon to determine the validity of pathological arbitration clauses.

Issue date

2016

Author

Huang, Ze Yu

Faculty

Faculty of Law

Degree

LL.M.

Subject

International commercial arbitration -- China

Conflict of laws -- Arbitration and award -- China

International Business Law -- Faculty of Law

Supervisor

涂廣建

Files In This Item

Full-text (Intranet)

Location
1/F Zone C
Library URL
991001195199706306