Reviewing the Independence of Arbitration Agreements——From the Perspective of"Judicial Pro-Arbitration"
The independence of arbitration agreements is a widely recognized authority on the potential inconsistent validity between a contract and the arbitration agreement contained therein.It echoes the pro-arbitration policy by promoting the validity of arbitration agreements.With its contract nature,the validty of arbitration agreement heavily relys on contract rules to determine,while the private law nature of arbitration requires the judicial support to promote its enforceability.All of the above lead to a dilemma on balancing the private party autonomy and the public interest on pro-arbitration.Divided by the effectiveness of the contract,the independence principle shall be applied differently in the contract formation stage and post-effective stage.Before contracting the arbitration agreement,an arbitration agreement can not acquire its separate validity prior to its formation.Unless the parties have reached their argreements by offer and acceptance on arbitration,the policy of pro-arbitration is not a ground to valid an inexistent arbitration agreement without formation which conflicts with the contract characteristic.Collaborating the application of discretionary jurisdiction with independence of the arbitral tribunal is an appropriate method to avoid this confict and achieve the balance between judicial review and support to arbitration.
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