There is an arbitration agreement is still can choose to court

   Together with the sales contract disputes, clearly stated in the contract dispute shall apply to the China international economic and Trade Arbitration Commission settled by arbitration in Beijing, not only the terms agreed arbitration institution, but also agreed on the place of arbitration. Like the stipulated arbitration cases under the jurisdiction may also choose whether or not to prosecute to the court? Holding fluky psychology, decided to go to the Pudong New Area people's court to try, though taking a certain skill, the arbitration clause distribution contract on the evidence of the middle, but on the court judge found the arbitration clause, decide not to accept the. But, even so, the program has many deficiencies in the existing law to solve the practical problems of fashion. The author thinks, even if both parties agree to have the arbitration clause, dispute, if one of the parties choose to court, the court can still accept the case.

One, the court can hear an arbitration agreement case

   The "Arbitration Law" fifth stipulates that: "the parties to reach an arbitration agreement, a people's court, the people's court shall not accept the case, unless the arbitration agreement is invalid." "Civil Procedure Law" stipulates that the 257th: "foreign economic trade, transport and maritime disputes, the parties in the contract contains an arbitration clause, or have subsequently reached a written arbitration agreement, arbitration institution of the people's Republic of China concerning foreign affairs or other arbitration organ, the parties may bring a lawsuit to a people's court." On the basis of the above provisions, the arbitration case, the general rule is that the people's court shall not accept the arbitration agreement is invalid, except in circumstances.

Arbitration has the nature of contract strictly, the jurisdiction of arbitration institutions, from voluntary arbitration agreement reached between the parties. It is against the will of the parties based on respect, only take effect out of court jurisdiction. But the validity of the arbitration agreement is not absolute, since it is the parties to reach an agreement, the parties can also give up or remove by express agreement or some kind of behavior, such as the two sides signed a written contract arbitration agreement, a party to the court, the other party to make a reply, can remove the original arbitration agreement. Therefore, the author thinks, will be prohibited from court accepts an arbitration agreement case approach is not appropriate, the people's court shall accept the arbitration agreement case, no matter how the validity of arbitration agreement. The following is the court may accept the arbitration agreement in the case of reason.

1, the current legislation between logic

   "Arbitration Law" provisions, "the parties to reach an arbitration agreement, a people's court, the people's court shall not accept the case, unless the arbitration agreement is invalid." From this provision, the people's court shall not accept the case there is an arbitration agreement, unless the arbitration agreement is invalid case. The problem is, the people's court in the case before the handover, unless the validity of arbitration agreement beforehand to apply to the people's court or the arbitration tribunal, the validity of the arbitration agreement does not determine. At present, all over the court to implement the "separating reception from separation" of the case system, on the court is only responsible for the registration materials, to be in line with the form of "Civil Procedure Law" prosecution acceptance, not filed materials substantive review, not to mention the ruling on the validity of the arbitration agreement. Therefore, the validity of the arbitration agreement is not clear in the case, only in the case of accepting the case after the court, and hand over the case to court, the court will make a judgment on the validity of the arbitration agreement. This is a contradiction in logic: for the arbitration agreement is invalid cases, the people's court may accept the arbitration agreement is invalid, but have to wait until after the acceptance of the case to draw conclusions.

2, the current legislation limiting the parties choose the way of dispute settlement of freedom

Selection of dispute solution is one of the rights of the parties, the rights and substantive rights are equally important. The arbitration agreement as a dispute settlement agreement between the parties, the parties shall abide by the agreement, subject to agreement constraints. But the effectiveness of the agreement is not absolute, the parties can also give up by re signed an agreement or a certain act or termination of the arbitration agreement. That is in spite of the original signed arbitration agreement, the parties are still entitled to the arbitration agreement, choose other ways of solving disputes rights. The prosecution behavior of one of the parties, may be regarded as a representation of the party to lift the arbitration agreement. The lifting of the arbitration agreement the parties rights, should be respected. The current legislation prohibits the court case an arbitration agreement, limiting the parties to make the lifting of the original arbitration agreement behavior is improper restrictions on the parties rights, private rights. If the respect for the rights of parties, allowing the court accepts the arbitration agreement has the same case, can properly solve disputes: court accepted such cases, if the other party does not raise any objection to the jurisdiction of the court, he actively responding to, can be regarded as the opposite party also agreed to lift the arbitration agreement, the trial by court for the resolution of disputes, the court should continue to trial, on the contrary, if the other party to the arbitration agreement on the grounds of the existing court of jurisdiction objection, as the other party does not agree to release the arbitration agreement in the contract, should implement the principle, the court should respect the arbitration agreements between the parties, dismissed the plaintiff's prosecution. So, in respect of the private right at the same time, solves the dispute between parties, but did not increase the additional cost of litigation.

3, the current legislation is difficult to implement

The law specifically prohibits, is practicable, can be implemented. Otherwise, the law does not correspond to the actual situation, not to be implemented in real life, can not play a role, but also damage the authority of law. Current legislation to ban the court has stipulated that arbitration agreement case, easy to be evasion: select the case to the people's Court of one of the parties, usually preference procedure rather than the means of arbitration, the court has accepted the case, they often do not submit materials containing an arbitration agreement, or the arbitration agreement is not clearly pointed out that the existence of. The court accepted the case in general only to the case review the form, easy to conceal and be filed by party. So it is easy to produce an embarrassing situation: on the one hand the law prohibits the acceptance of an arbitration agreement cases, on the other hand, cannot avoid accepting an arbitration agreement case. The current legislation of the provisions of the existing restrictions on the private right too, and had not been followed, but hurt the dignity of the law. Therefore, the author thinks, should allow the court accepts the case there is an arbitration agreement.

4, allow the court case has an arbitration agreement, and will not increase the cost of litigation

The current legislation prohibits the acceptance of the arbitration agreement in the case of reason, the two factors of economic efficiency and time only from the proceedings of consideration, that since the existence of the arbitration agreement, allowing the court accepted such cases, once the other party filed objections to jurisdiction, the Court confirmed the arbitration agreement is valid dismissed the plaintiff's prosecution, the case had to pay the arbitration tribunal. From the design procedure system point of view, it extended to resolve disputes in time, increase the litigation cost, is not economic, not in conformity with the lawsuit system in ensuring the conservation of judicial resources, maximize fairness under the premise of social dispute resolution in the shortest period of time the value request. The reason seems very reasonable, but careful observation, the reason and could not be established. The reason of legislation and implied a premise: prohibit the court accepts the case there is an arbitration agreement, the parties can not sue to the court; and when an arbitration agreement allows the court case, at least, most of the parties may choose to bring a lawsuit to the court. That is not the case. Judicial practice shows that, despite the existence of the arbitration agreement, to the court there are a large number of cases, and the court also received quite a part of such cases. Standing on the point of view, allowing the court accepts the arbitration agreement has not the case, most of the parties may choose to court. As two different way of resolving disputes, litigation and arbitration, and each has its own characteristics, and is not suit to the plaintiff, and arbitration is detrimental to its. The parties since agreed arbitration agreement on arbitration, generally have a certain preference, not going to abandon the arbitration and litigation. Moreover, the initiative to the court of arbitration for arbitration or to the court of a party, usually the rights are infringed, eager to receive the legal protection of the party. If the arbitration agreement is effective, once the other party filed an objection to the jurisdiction of the court, the court will reject the action. This process will take a long time. As soon as possible to resolve the dispute, the parties for the purpose of safeguarding their rights, in general will not choose the way of dispute settlement proceedings, or at least less possibility of litigation mode. Even if the parties to the arbitration agreement potency skeptical and filed a lawsuit, which also did not increase the cost of litigation. Since the parties sceptical about the validity of the arbitration agreement, even if it does not allow the court to hear his prosecution, the parties will also raise the recognition of the arbitration agreement is invalid, the cost of litigation will still occur. On the contrary, if the latter case the court to confirm the arbitration agreement is invalid, the parties have to file the lawsuit, litigation procedures in fact than the court directly accept cases more complicated, pay litigation costs more. Therefore, the author thinks, allowing the court accepts the arbitration agreement has been the case, did not result in increased litigation costs.

Two, to determine the effectiveness of arbitration agreement

   The court accepted an arbitration agreement after the case, the other party may exist in the arbitration agreement on the grounds of objection to jurisdiction. At this time, the court will need to recognize the validity of the arbitration agreement, jurisdiction objection to the decision to reject the plaintiff's prosecution or rejected the defendant. So, how to confirm the validity of the arbitration agreement?

   Determination of the validity of the arbitration agreement about the applicable law, there are two kinds of theory, namely the segmentation system and unified system. Segmentation of dividing a complete legal problem into several parts, respectively, for the treatment of different legal systems. For example, the ability of the party, whether the agreement has been concluded, the form of agreement and the substantive validity, agreement interpretation etc., all belong to the different parts of a complete legal issues under the. The use of segmentation system, for these different parts are subject to different laws, will lead to the same arbitration agreement reached different conclusions validity status. The whole system of the whole contract types that use the same regardless of contract law. At present our country in this respect there is no legislative provisions, it is consistent with practice, the capacity for civil conduct as a separate legal issues to the applicable law, the arbitration agreement concluded on the substance and form, effectiveness, protocol is explained, is to be treated as a whole.

Determination of the validity of the arbitration agreement, first to identify that the validity of the arbitration agreement is a program or entity problem. The procedural issues, the court of law to deal with. Our legislation does not clearly stipulated, in judicial practice, judges and basic ideas of the validity of the arbitration agreement, is based on the law of the court judgment, but in practice there are the problem as to procedural issues case. Also some scholars advocated, should put on the validity of arbitration are treated as entities, such that I find it difficult to agree. From the current practices of all the countries, in litigation, the tendency for judicial protection of their national interests is very obvious, some countries are still in the legislation reflected this tendency. At present many countries did not regard this question purely as a substantive issue, but leave some free space for judicial. Therefore, we confirm the validity of arbitration agreement is the procedural or substantive issues, we do not need legislation to be clarified, and the power to judge, in order to protect our national interests in specific circumstances.

The determination of the validity of the arbitration agreement processing procedures, the application of the law to confirm the validity of the agreement, this is for the protection of national interest, on the other hand, because the judges usually laws on its more familiar with, this is also convenient for lawsuit. In theory, a kind of popular opinion, apply to arbitration agreements, followed in accordance with the law chosen by the parties, the arbitration law and the law of the court. The parties in the arbitration agreement in the agreement applicable law has made provisions, the court should first be agreed upon by the parties law; not about timing in the parties, the court should the law applicable to arbitration; arbitration agreement not only in not only in accordance with the law, the court to determine. But this is only a theoretical insights, at present not only in China, other countries for the application of law of international arbitration agreement has not formed a unified approach in the theory and judicial practice.

Three, the court has handled cases after the arbitration agreement

The court accepted an arbitration agreement after the case, how to carry out further processing? This is the other party filed objections to jurisdiction are discussed.

1, the other party filed objections to jurisdiction case

The court accepted an arbitration agreement after the case, the other party has filed according to the arbitration agreement jurisdiction objection, the court how to deal with? The first thing to do is to identify the validity of the arbitration agreement. If the arbitration agreement, the objection to jurisdiction, the defendants behavior, show that the defendant is not willing to lift the arbitration agreement. In accordance with the contract should comply with the principle, the court should respect the arbitration agreement, dismissed the plaintiff's prosecution. If the arbitration agreement is invalid, the court should reject the objection to jurisdiction, continue to hear the case. In 1994 the "Arbitration Law" the provisions of article twenty-sixth reflects this content: "the parties to reach an arbitration agreement, a people's court without affirms the arbitration agreement, the people's court, the other party submitted before the first hearing of the arbitration agreement, the people's court shall dismiss the case, unless the arbitration agreement is invalid."

2, to the other party and no mention of objection to the jurisdiction of

The court accept the case, served notice to the defendant in accordance with the law, the defendant respondent entity defense, no mention of objection to jurisdiction, the court can not effect the arbitration agreement for the identification, trial continues. This is because, if the arbitration agreement is invalid, even if the other party filed objections to jurisdiction, the court rejected the opposition, continue to trial; if the arbitration agreement is effective, and did not mention respondents said the defendant agreed to give up jurisdiction, arbitration agreement, to choose the lawsuit way. Therefore, the court to entertain such cases, as long as the other party did not mention the objection to jurisdiction, the court without confirmation of the validity of the arbitration agreement, to continue the trial. Only in the filed objections to jurisdiction, it is necessary to review the effectiveness of the court of arbitration agreement. The Supreme People's Court on the "Civil Procedure Law" judicial interpretation of article 148th reflects this content: "if a people's court without affirms the arbitration agreement, the people's court, the other party is involved in reply, as the people's court shall have the jurisdiction."

3, the party has no objection to the jurisdiction of the respondent also did not mention the situation

Responding to the other party, regardless of whether mentioned objection to jurisdiction, the court are no obstacles in the case of treatment. Instead of responding to the opposite party, also has not mentioned objection to the jurisdiction of the court case, how to handle, there are many differences.

"Arbitration Law" twenty-sixth article: "the parties to reach an arbitration agreement, a people's court without affirms the arbitration agreement, the people's court, the other party submitted before the first hearing of the arbitration agreement, the people's court shall dismiss the case, unless the arbitration agreement is invalid; on the other side before the first hearing not the people's court to hear the case challenged, as a waiver of the arbitration agreement, the people's court shall continue to accept." We put the defendant respondent and does not bring an objection to Jurisdiction Act, said as defendant abandon arbitration agreement means, which are not controversial in theory and practice. Instead of responding to the defendant, whether we can according to the provisions of the "Arbitration Law", as to give up the arbitration agreement is the defendant? The court accept the case, the defendant in accordance with the law and served notice to the court summons, the defendant is entitled to bring the lawsuit right of objection. If the exercise of this right within the statutory time limit, the defendant should bear the corresponding legal consequences. This is the proper meaning of losing right system in civil procedure. On the basis of the losing right system of civil litigation, the parties did not implement the corresponding behavior within the legal time limit, lost the lawsuit right, bear the legal consequences of the adverse. Therefore, the "Arbitration Law" provisions of the parties such as the existence of an arbitration agreement on the grounds that the counterclaim defence, we must take positive objection made before the first hearing, is a very good reason. If the defendant raises no objection to the jurisdiction before the court, even if the defendant did not respond to substantive defense, can also be considered lost about jurisdiction objection rights for its, the court can continue the trial, and shall make a judgment by default.