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Research on the Denationalized Theory of Arbitration

Author: SunZhe
Tutor: ZhaoShengXiang
School: Southwest University of Political Science
Course: International Law
Keywords: Non- domestic arbitration theory International Commercial Arbitration Autonomy
CLC: D997.4
Type: Master's thesis
Year: 2009
Downloads: 127
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Abstract


The non-domestic arbitration theory is developed in the International Commercial Arbitration practice on the arbitration procedure and substantive law applies and extends to a theory of arbitral awards effectiveness. The core content of the theory, in International Commercial Arbitration procedural law and substantive law applicable, which the theory stresses can be applied to the parties or the arbitration tribunal of arbitration selected outside legal; effectiveness of Arbitral Awards, non-domestic the arbitration theory emphasizes the effectiveness of the arbitration is autonomy, does not rely on any national recognition and recognition. The rapid development of international commercial arbitration, to study it some of the theoretical and practical significance. The first part of this article discusses the theory of the formation of non-domestic arbitration. Since the mid-20th century, the foreign elements in the arbitration is gradually increased, the appearance of a permanent establishment as well as national legislation on respect for the principle of party autonomy, making the generation of non-domestic arbitration theory with a practical foundation. International commercial arbitration practice in specific cases as compared to the emergence of the theory provides important support. On this basis, some Western scholars have put forward the theory of non-domestic arbitration. Different scholars have different representations of arbitration theory of non-domestic, but most believe that the theory expansion of party autonomy, and to promote the advancement of international commercial arbitration. The second part of this article discusses the theory of non-domestic arbitration of international commercial arbitration autonomous propulsion. First of all, in the emphasis on aspects of party autonomy, non domestication arbitration theory with the arbitration contract theory is no different cause, and even fewer restrictions imposed on party autonomy, which fit the trend of the development of the International Commercial Arbitration. Secondly, the non domestication arbitration theory washback the traditional arbitration procedures in accordance with the arbitration rules of the theory. The theory is that the arbitration with the arbitration proceedings between the contact was accidental, International Commercial Arbitration arbitration proceedings should be excluded from the control of the rules, and only by the arbitral award enforced rules control. Again, non-domestic of arbitration theory designed to limit the excessive intervention of the court of arbitration, that the less interference the better. Finally, the emergence of online arbitration brought challenges to the traditional theory and practice of international commercial arbitration rather than domestic arbitration theory of better explanation can be made online arbitration rulings effectiveness of arbitration. The third part of this article is still arbitration autonomy perspective, the problem of existence of the non domestication arbitration theory theoretical reflection and empirical analysis. Of arbitration theory of non-domestic basic questions need to be clarified, such as sources of arbitration rights issues, the question of the nationality of arbitral awards, arbitration and court supervision relationship problem. Arbitration rights from the parties to the accord granted is beyond doubt. The arbitral award should have a nationality, natural arbitral award is difficult to find in practice. International Commercial Arbitration only the support of the court, can be carried out smoothly. From the empirical point of view, the civil law of some countries, such as France, Belgium and other countries of the arbitration legislation reflects the adoption of some degree of non-domestic arbitration theory, but that does not mean that the arbitration in these countries has been completely non- domestication. The United Kingdom and the United States more recent legislation and practice, the adoption of non-domestication arbitration theory to fight the tendency, such as the United Kingdom in 1996, \Britain and the United States, the arbitration proceedings in accordance with the arbitration rules of the traditional principle is still widely followed. The fourth part of this article discusses the relevant legislation and practice. Arbitration Act, 1995, and related legal documents were not clearly defined ruling status in China within the country as well as how to deal with. Chinese court may also experience within the country of the need to recognize and enforce the award program as well as the controversial ruling effect arising thereunder. According to the current legislation and practices, opportunities for non-domestication arbitration theory does not apply in China. However, with the increase in foreign-related commercial arbitration cases, China is likely to encounter other countries in the application of the theory of the case. On this basis, the section on how to improve China's foreign-related commercial arbitration system, to promote the development of arbitration autonomy put forward recommendations. In summary, the paper concludes: Arbitration Procedure Act convergence trend is particularly evident in the global legal convergence, the right to the pursuit of business people and struggle to muster the Rise of International Commercial Arbitration. The emergence of non-domestic arbitration theory enriched the theory and practice of international commercial arbitration, but its scope of application, applicable opportunities still limited.

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CLC: > Political, legal > Legal > International law > Private international law > International Commercial Arbitration and the International Maritime Law
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