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仲裁协议的法律适用事关当事人通过仲裁解决纠纷的意愿能否实现,亦是仲裁庭获得管辖权的法律基础。当下国际商事仲裁法律适用的方法首先是以当事人约定的法为优先,其次是仲裁地法。一般法律规则、法院地法、冲突规范、合同准据法和使仲裁协议有效的法等法律作为最后的选择,各国做法不尽相同。在我国《仲裁法》和《涉外民事关系法律适用法》的背景下,应以使仲裁协议有效的法作为当事人约定的法和仲裁地法之后的选择,以尽量使仲裁协议有效。
The legal application of the arbitration agreement relates to the parties’ willingness to settle disputes through arbitration and is also the legal basis for the arbitral tribunal to obtain jurisdiction. The current method of international commercial arbitration law is first based on the law agreed by the parties, followed by the law of arbitration. As a last resort, general legal rules, the law of courts, conflict rules, the law applicable to contracts and the law that makes the arbitration agreement valid are not the same. In the context of China’s “Arbitration Law” and “Law Applicable to Foreign-related Civil Relationships”, the law that makes the arbitration agreement valid should be chosen after the parties have agreed on the law and the law of arbitration so as to make the arbitration agreement as valid as possible.