DETERMINING THE VALIDITY OF AD HOC ARBITRATION AGREEMENTS IN CHINA:PAST, PRESENT, AND FUTURE

摘要

This paper explores the law in China determining the validity of ad hoc arbitration agreements.It first points out the particularity of China's attitude toward ad hoc arbitration through a textual analysis of key provisions in Chinese laws and the comparison between Chinese law and the law of other jurisdictions.The authors then adopt an empirical approach to analyze Chinese courts' practice in the application of Chinese arbitration laws and conclude that,despite the clear wording employed by the Chinese Arbitration Law,Chinese courts could use two ways to save the ad hoc arbitration agreements without disobeying the statutory law.The paper then moves to analyze the Opinion of Supreme People's Court on Providing Judicial Guarantee for the Construction of Free Trade Pilot Zone (hereinafter referred to as "SPC Opinion") issued in December 2016,which is viewed as a tipping point toward a supporting regime of ad hoc arbitration.By implementing this SPC Opinion,for the first time,China regionally embraces ad hoc arbitration.On the basis of the analysis of this new development,the authors suggest possible facilitations to the SPC Opinion and predict the future reform of ad hoc arbitration.