Research on the Expansion of the Effect of Arbitration Agreements in China
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Voluntariness is the basis for the emergence and development of arbitration, so the effect of arbitration agreements is confined to the contracting parties. In recent years, with the development of society, discussions have arisen on whether the arbitration agreement can extend from absolute voluntariness to non-contracting parties. Based on various reasons, including the privity of contract, the independence of arbitration clause, and the privacy and confidentiality of arbitration, the negation theory denies the expansion of the effect of arbitration agreements to non-contracting parties. While from the perspective of the exception of the privity of contract, the improvement the efficiency of litigation settlement, and the application by analogy of litigation expansion, the supporting argument affirms the reasonable expansion of the effect of arbitration agreements to non-contracting parties. Whether the effect of arbitration agreements can be expanded have arisen controversies in the theoretical circle, and there are two distinctive attitudes in the practice circle. Against the background that the expansion of the effect of arbitration agreements has already become an international trend, China has also made legislative attempts to expand the subject and content of arbitration agreements: it is expanding the effect of arbitration agreements to non-contracting parties by conducting subject expansion on various aspects such as tacit consent, the determination of arbitration of a secondary contract based on its principal contract, succession, subrogation, agency, etc.; it is also trying to maintain the effect of arbitration agreements by conducting content expansion on various aspects such as multiple arbitration commissions, and arbitration-or-litigation mechanism. The expansion of the effect of arbitration agreements conforms to the value orientation of efficiency and justice, and is supported by the theoretical basis of the estoppel principle and the fair and reasonable expectation principle. The expansion of the effect of arbitration agreements is in line with the development of the times.
Abstract
Voluntariness is the basis for the emergence and development of arbitration, so the effect of arbitration agreements is confined to the contracting parties. In recent years, with the development of society, discussions have arisen on whether the arbitration agreement can extend from absolute voluntariness to non-contracting parties. Based on various reasons, including the privity of contract, the independence of arbitration clause, and the privacy and confidentiality of arbitration, the negation theory denies the expansion of the effect of arbitration agreements to non-contracting parties. While from the perspective of the exception of the privity of contract, the improvement the efficiency of litigation settlement, and the application by analogy of litigation expansion, the supporting argument affirms the reasonable expansion of the effect of arbitration agreements to non-contracting parties. Whether the effect of arbitration agreements can be expanded have arisen controversies in the theoretical circle, and there are two distinctive attitudes in the practice circle. Against the background that the expansion of the effect of arbitration agreements has already become an international trend, China has also made legislative attempts to expand the subject and content of arbitration agreements: it is expanding the effect of arbitration agreements to non-contracting parties by conducting subject expansion on various aspects such as tacit consent, the determination of arbitration of a secondary contract based on its principal contract, succession, subrogation, agency, etc.; it is also trying to maintain the effect of arbitration agreements by conducting content expansion on various aspects such as multiple arbitration commissions, and arbitration-or-litigation mechanism. The expansion of the effect of arbitration agreements conforms to the value orientation of efficiency and justice, and is supported by the theoretical basis of the estoppel principle and the fair and reasonable expectation principle. The expansion of the effect of arbitration agreements is in line with the development of the times.
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