ABSTRACT

This thesis' study purpose is generalizing the arbitrability of international commercial arbitration of various countries to be some general principles that make a self-criticism the legal systems at present, in order to as building the foundation of the law in the future. Resources of documents succeed by collecting the books, electronic materials and network materials of every library of our country. The research methods of this thesis including compare and analyze various countries of arbitrational legal system , theory and case, put in order and sum up a theory, and according to this deduce the unreasonable place on the practice at present.



download 摘要目錄PDF(9 pages)
download 論文電子全文PDF(337 pages)
The Research of Arbitrability of International Commercial Arbitration
Student：Shyu, Haur-Jiunn 　Advisors：Dr. Lai, Lai-Kun
Institute of Law
Hsuan Chuang University
ABSTRACT
This thesis' study purpose is generalizing the arbitrability of international commercial arbitration of various countries to be some general principles that make a self-criticism the legal systems at present, in order to as building the foundation of the law in the future. Resources of documents succeed by collecting the books, electronic materials and network materials of every library of our country. The research methods of this thesis including compare and analyze various countries of arbitrational legal system , theory and case, put in order and sum up a theory, and according to this deduce the unreasonable place on the practice at present. The research results of this thesis are as follows:
First, take a broad view of the definition and function of arbitration. It is that both parties in the dispute reach an agreement before and after the dispute take place to arbitrate, transfer their dispute to the arbitrator desirably then the dispute judged and solved. And arbitration agreement is the arbitration foundation stone, its definition, form type and essence requirement for necessity discussed. In fact, arbitrability, it is a content essence important requirement of the desirable behavior of arbitration agreement. The US Supreme Court's definition in "arbitrable" has used it on an excessive phenomenon.
In accordance with contesting a lawsuit the arbitrability is separated to subjective arbitrability (or the parties to arbitration-capacity to submit to arbitration, the capacity of making arbitration clause) and objective arbitrability. From Napoleon's code, arbitrability tatione personae develops with the distinction between personal and public interest, denies country and public organization submit dispute to arbitration and exist in the form of immediate applicable law. The arbitrability ratione materiae of various countries have different in many fields, such as commercial affair, tort, property, bankrupt, intelligence property, anti-trust, tax, corruption and so on. So the international community gives up stepping a uniform arbitrability and replaced it with the international arbitration decision's recognizing and executing in New York Convention and UNCITRAL Model Law. Their exclusive method is mandatory law of interior country and disobeys public policy or good morals.
International arbitral agreement is it deficient in arbitrability, must solve their select the law and jurisdiction problem first on prerequisite. Overlooking arbitration process, the law governing the agreement to arbitrate, the conduct of the arbitration, the substantive contract and conflict law are all need to be application. The stairway applicable law, doctrine of autonomy of the parties, lex fori, lex cotractus, personal law, curial law, proper law, the most significant contacts law, concurrent law, lex mercatoria, Shari’ah, immediate applicable law and lex loci contractus all have diverse applicable opportunity in diverse situation. And the jurisdiction questions highly connect with severability of arbitration agreement, competence-competence, and jurisdictional immunity.
This thesis compares the legal system of countries all over the world to arbitrability, including Europe , America , the Arab world , Africa , Asia and country of Pacific Ocean of ring , main country of international trade, for instance: Britain , France , Germany , Switzerland , Sweden , U.S.A. , Japan , Malaysia , China Mainland, etc. all have and discuss, finally recommend our country, Republic of China (R.O.C. in Taiwan) to arbitrability the practice present situation.
In conclusion, I think the parties involved arbitration (ex: class arbitration) don't need to have equal relations, and the dispute items not limited to the property relation either in the important social interest, so long as every country can accept decision and permit, then the case has arbitrability. The arbitration tribunal should choose proper lex loci contractus to be governing law of the substantive contract. In order to promote the efficiency of on-line arbitration, arbitration and accommodation should not exist in the same procedure at the same time.

If any problem or advice about the thesis or the topic of arbitrability, please contact to: b85104047@ntu.edu.tw. Best Regards.