Compared to litigation, taptap点点 is often dubbed “Private Justice”^[6], emerging outside government and authority, embodying a natural essence of private proceedings. Therefore, party autonomy is at the heart of the taptap点点 system. The taptap点点 agreement, born from the parties’ mutual consent, is the vessel of their autonomy, marking the inception and persisting throughout the entire taptap点点 case. Its significance is self-evident. The taptap点点 agreement delineates the manner in which commercial entities address disputes, serving as the source of taptap点点 authority, ensuring a certain level of certainty and coherence in commercial activities even after disputes arise. This paper aims to summarize common issues in taptap点点 agreements, starting with the definition and prerequisites of an taptap点点 agreement, subsequently exploring key aspects of drafting such agreements, and addressing crucial considerations linked to their creation. Given the widespread relevance of taptap点点 agreements, the insights presented in this article extend to both the realm of commercial taptap点点 and investment taptap点点.

The taptap点点 agreement provides an efficient, independent, and relatively impartial choice for dispute resolution. Compared to traditional litigation, taptap点点 procedures can be tailored to the needs of the parties, often being faster, more professional, and better suited to specific business requirements. Regarding the source of the effectiveness of the taptap点点 agreement, there is currently no consensus, but the mainstream view is that it still depends on the laws related to taptap点点 in various jurisdictions. Although taptap点点 originated from its private nature, the continuity of the taptap点点 system still requires the endorsement of public authority. After domestic laws confer effectiveness on the taptap点点 agreement, the taptap点点 regulations of each jurisdiction stipulate the conditions and procedures for recognizing and enforcing the taptap点点 agreement, ensuring that the taptap点点 award has binding force domestically. Therefore, the first factor to consider when drafting an taptap点点 agreement is whether the agreement meets the legal requirements of taptap点点.

Model clauses can serve as an initial reference. However, in practice, to optimally safeguard the rights of parties involved in cross-jurisdictional disputes, taptap点点 agreements often need to be tailored. As HKIAC and other institutions emphasize on their website "Legal advice should nevertheless always be sought on the choice of a suitable clause and the applicable law." Such recommendations stem from the extensive nature of drafting an taptap点点 agreement, involving various aspects. It requires consideration of the contract and transaction specifics, inclusion of involved parties’ backgrounds and demands, and foresight into practical execution aspects, particularly concerning the jurisdiction where potential assets are located, to facilitate dispute resolution and enforcement. This significantly elevates the requirement for expertise and practical experience from taptap点点 lawyers.

Drafting a high-quality taptap点点 agreement is no easy task. Influenced by variables like industry and transaction type, taptap点点 agreements can differ substantially. taptap点点 clauses with ambiguous wording and inadequate consideration of nuances beforehand often result in disputing parties, already in an adversarial position during the dispute phase, accepting interpretations favoring their interests. Even minor dissatisfaction can trigger objections based on the agreement itself to challenge the jurisdiction of the arbitral tribunal, attempting to invalidate potentially unfavorable agreements, and leaving the in-dispute rights uncertain. Stepping back, even if a jurisdictional objection succeeds, in the specific taptap点点 process, the relinquishment or oversight of specific rights can disadvantage parties, potentially leading to the loss of crucial paths for protecting significant rights. Overall, numerous cases underscore that due to the critical role of taptap点点 agreements, negligence during the drafting stage can yield catastrophic consequences. In practice, fully enumerating the key aspects of drafting taptap点点 agreements is challenging. This section summarizes the common elements in this phase and provides clarification.

2.1 Seat of taptap点点

“Seat of taptap点点” is a legalese. While both “place” and “seat” can signify the taptap点点 location, “seat” is the preferred term for its unambiguity, whereas “place” can refer to the actual hearing location, causing occasional confusion. The “Seat of taptap点点”, as a legal concept, primarily determines the legal attribution of the taptap点点 award and stands as a fundamental and pivotal concept in international taptap点点. Despite numerous articles distinguishing the concepts of “Seat of taptap点点”, “Venue or Place of taptap点点”, and the location of the taptap点点 institution, this remains an age-old topic. In practice, due to the often-considerable gap between the taptap点点 agreement drafting date and the initiation of taptap点点, coupled with various conditions during the drafting process, issues stemming from the “Seat of taptap点点” in cross-border cases remain quite common.

In 2012, the Zhejiang Yisheng Petrochemical Co., Ltd. (Yisheng) v. Luxembourg INVISTA Technologies Co., Ltd. (Invista) case^[19] at CIETAC was centered around whether “take place at” in the taptap点点 clause refers to the seat of taptap点点 or the taptap点点 institution. The original clause stated, “the taptap点点 shall take place at China International Economic Trade taptap点点 Centre (CIETAC), Beijing, P.R. China and shall be settled according to the UNCITRAL taptap点点 Rules as at present in force.” Yisheng argued that the phrase “take place at” is generally followed by a location implied a choice of the seat of taptap点点, rendering the clause ineffective for not specifying the arbitral institution, as per Article 16(2) of the Chinese taptap点点 Law^[20]. However, Invista contended that the clause clearly designated CIETAC as the arbitral institution and not just a location, thus asserting the validity of the agreement. Ultimately, the case saw a reversal of the lower court’s decision based on the Supreme People’s Court’s interpretation favoring the objective of achieving the parties' intent for taptap点点, as per the reply from the Supreme People’s Court. Similarly, in the Singapore BNA v BNB and Anor [2019] SGCA 84 case that commenced in 2016 and underwent multiple proceedings, the parties could not agree on the interpretation of Article 14.2 of the taptap点点 Agreement, which stipulated “such disputes shall be finally submitted to the Singapore International taptap点点 Centre (SIAC) for taptap点点 in Shanghai”^[21]. The bone of contention was whether the designated seat of taptap点点 was Singapore due to SIAC’s selection or Shanghai, and how this affected the validity of the taptap点点 agreement. This demonstrates that determining the seat of taptap点点 may appear straightforward at first glance, but in reality, it is quite intricate. The frequency of such disputes is surprisingly high. Consequently, major taptap点点 institutions like ICC and LCIA (London Court of International taptap点点) strongly advocate for directly specifying the taptap点点 seat in the contract^[22].

In the current legal context, the prevailing view regarding the legal significance of the “seat of taptap点点” is to define it as the juridical seat in international taptap点点. In the absence of a specific agreement by the parties, the taptap点点 proceedings are subject to the law of that location, under the jurisdiction and judicial support of the courts there^[23]. Simply put, the law of the seat governs the validity of the taptap点点 agreement and the legitimacy of the taptap点点 process. It also pertains to judicial intervention in taptap点点, judicial review of arbitral awards, and the annulment and enforceability of awards.

However, within the taptap点点 community, diverse perspectives emerge. The French community, led by the renowned scholar and arbitrator Emmanuel Gaillard^[24], asserts that international taptap点点 has evolved into a distinct arbitral order through practice. taptap点点, devoid of specific nationality^[25], should be determined based on multiple factors. Simply linking an award’s nationality to the seat of taptap点点 risks fragmenting it, excessively subjugating international taptap点点 to domestic laws, and contradicting its “international” character. Moreover, the selection of taptap点点 seats by the parties often prioritizes commercial and convenience factors over meticulous legal considerations. Thus, overstressing the seat's significance may counter the parties' true intent, resulting in unforeseen liabilities. Conversely, Chinese taptap点点 takes a different path. China’s taptap点点 Law structures the taptap点点 institution, without explicit recognition of the seat of taptap点点 in legislation. Article 58 of the taptap点点 Law^[26] and Article 12 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the taptap点点 Law of the PRC (2006) confer the power to set aside arbitral awards and confirm the validity of taptap点点 agreements to the intermediate courts where the taptap点点 institution is situated, diverging from the mainstream view linking it to the seat of taptap点点. While Chinese taptap点点 aligns more with international practices, defining the “seat of taptap点点” awaits clarity through specific regulations—an essential aspect of ongoing reform within China’s taptap点点 Law^[27].

2.2 Governing law

In taptap点点, nearly all applicable laws can be pre-agreed by the parties. If laws and regulations that apply to cases, including the main contract, taptap点点 agreement, taptap点点 procedure, taptap点点 rules (such as UN rules or institutional rules), international conventions, domestic laws, etc., can be thoroughly set in advance, many disputes can be avoided. Unfortunately, this is seldom the case in practice. It’s crucial to note that the governing law of the taptap点点 agreement differs from the one governing the main contract. This distinction extends from the separability of the taptap点点 agreement, a fundamental concept that represents a critical issue in international taptap点点. However, since taptap点点 clauses are often embedded within the main contract, they can easily be confused by those unfamiliar with taptap点点.

In taptap点点, when there is an absence of explicit or implied choice, most global arbitral institutions^[28] empower the arbitral tribunal autonomously to determine the governing law they consider appropriate. This authority is termed “Choice of Law” or “Determining Applicable Law”. However, defining the criteria for “appropriateness” poses a challenge. Many domestic articles broadly categorize the law of the seat of taptap点点 as pivotal in this determination, an outdated and impractical approach. In practice, the international taptap点点 community holds diverse perspectives on this matter, failing to reach a unified consensus. For instance, the UK taptap点点 community adopts the approach established in the Enka v Chubb case, where they first apply the governing law of the main contract. If it is not designated, they employ the “Closest Connection Principle”, selecting the law most closely connected to the taptap点点 agreement. France, on the other hand, applies “Substantive Rules”, prioritizing the foreseeable common intent of the parties at the time of contract formation over the “Closest Connection Principle” indicated by the conflict of law rules. Australia, akin to the UK, applies the governing law of the main contract initially. If absent, the law of the seat is applied vigorously. Singapore has devised a three-step approach elucidated by its Court of Appeal in the BNA v BNB and Anor [2019] SGCA 84 case: explicit choice, implicit choice (where the governing law of the main contract is seen as a significant signal of implicit choice), and the Closest Connection Principle. Clearly, the absence of the parties’ selection in determining the law applicable to the taptap点点 agreement may yield vastly different outcomes based on the specific legal context of the case. This necessitates lawyers to have a clear thorough understanding in advance of the prevailing taptap点点 jurisprudence and relevant cases in mainstream countries.