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On Independence of Arbitration Clause

Author: JiangWei
Tutor: ZhangLiMin
School: Suzhou University
Course: Legal
Keywords: International commercial arbitration Arbitration clause independence Imperative law Provision potency
CLC: D925.7
Type: Master's thesis
Year: 2011
Downloads: 86
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Abstract

The independence of arbitration clause means arbitration clause, as a clause of whole contract, although often appears together with the primary contract, is still separate from the primary contract to which it affiliated, i.e. arbitration clause will not be invalid only because of primary contract’s being invalid, terminated or cancelled, and it will not be influenced when main contract is altered, non-existent. Independence of arbitration clause, as a legal theory and principle, has been adopted gradually in practice by laws and arbitration rules in most countries all over the world. Basically theoretical base of arbitration clause autonomy is that it is taken as a clause affiliated to commercial contract, a comparatively independent clause of the contract. Such character determines that its validity should not be influenced by main contract, and should be determined separately by review of requirements for its own validity. This theory and rule reflects parties’autonomy, procedural value, and efficiency requirements. The developing trend of arbitration clause independence is its increasing support from all over the world. Though countries have prevailingly established the policy of backing arbitration clause, there exist some differences in the extent of adoption of arbitration clause autonomy, which affects the strength extent of its support and autonomous authority of arbitral tribunal.

On Independence of Arbitration Clause

Abstract

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