Research On Applicable Law In Modern International Commercial Arbitration

Centering on applicable law of international commercial arbitration, basing on analysis of the general theories of applicable law in international commercial arbitration, the dissertation analyzes the applicable law of arbitration agreement, the applicable law of procedural issues in international commercial arbitration and applicable law of substantive issues in international commercial arbitration. On those bases, according to the legislations of arbitration of other countries and related international organizations, and China's current legislation and arbitrational practice, the dissertation discusses related problems in the field of applicable law in international commercial arbitration in China, and puts forward practical suggestions for amendment of Chinese arbitration law and Chinese future practice of international commercial arbitration.The dissertation consists of five chapters besides introduction.Chapter one makes an introduction of the general theories of international commercial arbitration and its applicable law. International commercial arbitration is a system, by which parties of international commercial activity voluntarily submit their contractual or non-contractual commercial dispute to ad hoc or permanent arbitral tribunal according to arbitration agreement, and the tribunal makes binding arbitration awards. It came into being in Europe in the thirteenth and fourteenth centuries, developed and improved at the end of the nineteenth century and the beginning of the twentieth century, now it has become an important tool for international economic communication. International commercial arbitration took on a trend of unification since the end of the nineteenth century. New York Convention of 1958 and UNCITRAL Model Law on International Commercial Arbitration of 1985 are typical representations of different stages of this trend. The application of laws to international commercial arbitration refers to the choice of laws in international abitration to determine the effect of international commercial arbitration agreement, the application of the procedural rules of international commercial arbitration and the substantive rights and obligations of the parties in the course of international commercial arbitration. It has direct effects on the validity of the arbitration agreement, on the procedural rules and the determination of the substantive rights and obligations of the parties, and on the legal effect of arbitration award and its recognition and enforcement. Its main characteristic lies in that parties of arbitration has more autonomy in choosing the applicable law of arbitration agreement, procedural law and substantive law of arbitration, and the applicable law is not confined to the law of the place of arbitration. It usually involves three issues: the applicable law of arbitration agreement, the application of the procedural rules, and application of arbitrational substantive law. There are three legislative modes of applicable law in international commercial arbitration, that is: making special provisions in arbitration law, making special provisions in private international law, and making provisions in civil procedure law. The development of economic globalization, coming of era of network, and theory and practice of third party in arbitration make basic system of international commercial arbitration face enormous challenges. The tendency of unification in international commercial arbitration makes applicable law in international commercial arbitration mainly base on uniform substantive law, but rules of conflict will still play its special role for a long time. System of international commercial arbitration established on the basis of the principle of the autonomy of parties and development of its practice enhanced the important role of this principle in the field of applicable law.Chapter two explores the application of laws to international commercial arbitration agreement. The application of laws to international commercial arbitration agreement is a very complicated theo...