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约定外国仲裁机构在中国仲裁,此类仲裁协议在实践中较为普遍。鉴于往例多选法无因、用法失度之流弊,最高人民法院民四庭特推典型案例,以彰此类协议的裁判思路及其支持仲裁的友善立场。文涉复函虽肯认仲裁协议效力,但选法和用法仍有未尽未决之关键要点。为止裁判无据无理之后乱,选法宜依“特别法优于一般法”原则,适用《最高人民法院关于适用〈中华人民共和国仲裁法〉若干问题的解释》(以下简称仲裁法司法解释)而非《中华人民共和国涉外民事关系法律适用法》(以下简称《法律适用法》)或其司法解释之选法规则,排除仲裁机构所在地的选法指引功效。在用法阶段,以《中华人民共和国仲裁法》(以下简称《仲裁法》)为准据法时,首应依仲裁机构设立地法定其资格和能力,继而以一般或自动认可之方式承认其在中国组织仲裁的地位,不生WTO之GATS项下的准入问题。修订仲裁法使之科学化和国际化,是此类问题的根绝方案。
Arbitration of foreign arbitration institutions agreed in China, such arbitration agreement is more common in practice. In view of the fact that the law of multiple choice has no cause and the law of losing its usage has been evaded, the Supreme People’s Court advocated the typical case of the People’s Court and the Court of Justice to promote this kind of agreement and its friendly position in supporting arbitration. Although the text of the memo reply acknowledges the validity of the arbitration agreement, the key points of the pending election and its application remain to be determined. Up to this point, the referees should follow the principle of “special law is superior to common law”, and apply the “Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of the Arbitration Law of the People’s Republic of China” (hereinafter referred to as the Judicial Interpretation of Arbitration Law ) Instead of the Law of the People’s Republic of China on the Application of Law in Foreign Relations Concerning Foreign Affairs (hereinafter referred to as “Law Applicable Law”) or its judicial interpretation of the Law of Choice, excluding the guidelines for the selection of the venue of the arbitration institution. At the usage stage, when the Arbitration Law of the People’s Republic of China (hereinafter referred to as “the Arbitration Law”) is the law, the arbitration institution shall first determine its qualifications and abilities, and then admit it in a general or automatic manner The status of China’s organization of arbitration does not give rise to the issue of access under GATS under the WTO. The revision of the Arbitration Law to make it scientific and international is an eradication solution to such problems.