Study On Questions Relating To Party Autonomy In International Commercial Arbitration

The autonomy of the parties' will is the basis and main line of international commercial arbitration.Without the autonomy of the parties' will,there is no international commercial arbitration.Therefore,it is of great significance to explore the possibility of further expansion of party autonomy in the field of international commercial arbitration to enhance the characteristics of contract and autonomy of international commercial arbitration and to consolidate the status of international commercial arbitration as a flexible and efficient dispute resolution mechanism.However,under the circumstance that national judicature continuously strengthens the control and intervention of international commercial arbitration,whether to expand and how to expand the parties' autonomy of will has become a question worthy of attention.The autonomy of the parties' will itself contains the value of freedom,the value of justice and the value of rights,which is a scarce legal resource.As a kind of relative things,although autonomy of the parties shall,in the case of national judicial border to stop exercising,but in the current national business with highly autonomous organizations of a rapidly growing globalization and trades,and people more eager than any time before the rights of freedom,equality and objective situation,expanding the scope of party autonomy exercise,give party autonomy more liberalisation connotation has become the development trend of international commercial arbitration in the future.It is the first concern to study the possibility of extending the party's autonomy of will in the international commercial arbitration matters to expand the party's autonomy of will and to take measures to expand the party's autonomy of will.According to the existing research on the international,the items of party autonomy extension exercise mainly involves the following four aspects-the parties can cases concerning foreign factors will be submitted to international commercial arbitration,the parties,whether the arbitration jurisdiction objection can free distribution and to the arbitration procedures have the decision,the parties,whether through a desirable change in international commercial arbitration award revoked for and whether the parties of ruling through the arbitration agreement shall not be admitted and execute the legal mechanism of the modification.Accordingly,the existing international studies have also conducted active discussions on the countermeasures to the problems involved in the extension of the exercise of the party's will autonomy mentioned above.Specifically:First,the "international" standards for international commercial arbitration should be relaxed,and the New York convention's regional standards should be strictly followed.It is believed that as long as the place of international commercial arbitration and the place of execution of the arbitration award are not located in the same member country of the convention,the New York convention can be applied to both parties regardless of whether they have the same nationality.That is to exclude the applicability of the nationality of the parties and allow them to submit the case without foreign element to international arbitration;Second,from the point of view that invalid arbitration agreement cannot be used as the basis for the arbitral tribunal to obtain the right of arbitration,the principle of the arbitral tribunal's self-jurisdiction is established through national legislation,so as to provide the judicial theoretical source guarantee for the enjoyment and exercise of the arbitral tribunal's right of arbitration.From the perspective of the basic status of arbitration agreement in international commercial arbitration and the respect for the procedural autonomy of the parties,the author recognizes the right of the parties to freely distribute the final decision of the disputes in the arbitration jurisdiction and the right of the parties to decide the arbitration procedure.Only when the parties violate the domestic compulsory law and the compulsory arbitration rules of the arbitration institution,the exercise of the procedural autonomy of the parties is restricted.Third,deny the parties to change the legal effect of the cancellation of international commercial arbitration award through agreement,and strictly limit the cancellation of international commercial arbitration award to the scope stipulated in article 5 of the New York convention.However,in order to guarantee the freedom of the parties to exercise their will autonomously,advanced arbitration countries have allowed the establishment of an appeal system within the arbitration mechanism,and the right of cancellation of an arbitration award enjoyed by the parties in the field of international commercial arbitration has been converted into the freedom of choice of arbitration appeal.Fourth,in accordance with the purposes and purposes of the New York convention,to promote the uniform recognition and enforcement of international commercial arbitration awards within the scope of member states,and prohibit the parties from entering into arbitration agreements amending the non-recognition and enforcement mechanism of international commercial arbitration awards.We should strengthen the process of interpretation of the New York convention by relevant international organizations,and suggest that member states should abide by the principle of good faith when interpreting the parties' failure to recognize and enforce international commercial arbitration awards.In addition,in order to provide the right relief mechanism for the parties,some advanced arbitration countries have established the judicial appeal system.At least the possibility of the further expansion of the party's will autonomy has not been clearly seen in the arbitration legislation.According to above party autonomy extension exercise problem,our current arbitration legislation absence or old regulations,performance is as follows: first,our country is still in adherence to standards applicable to foreign said three elements,the standards concerning foreign affairs but nature of it is hard to some form of foreign-related cases come in,has not fully meet the needs of the objective situation of the development of international commercial arbitration.In recent years,although China has relaxed the standards for the determination of foreign-related factors by introducing judicial interpretations,the arbitration legislation has not been confirmed when cases without foreign-related factors are submitted to international commercial arbitration.Second,although China's arbitration law establishes the principle of arbitration jurisdiction,it defines the subject exercising such arbitration jurisdiction as the arbitration commission,and establishes the priority of the court over the arbitration objection jurisdiction when the arbitration commission and the court exercise the arbitration objection jurisdiction in parallel.In the case that the arbitration tribunal cannot enjoy the jurisdiction of its own decision,the parties' freedom of distribution of the final decision power in the jurisdiction of the arbitration objection cannot be implemented.In addition,China's arbitration legislation does not make any provisions on whether the parties enjoy the right to decide the arbitration procedure.In practice,the right of arbitration procedure is monopolized by the arbitral tribunal.Third,although China's arbitration legislation stipulates the reasons for the parties to apply for the cancellation of the award,it fails to specify the nature of the legal provisions of such reasons.When a party applies for cancellation of an award for a cause other than the cause in question,the court usually rejects the application as "not within the scope of judicial review".At the same time,China's arbitration law does not make further provisions on how to provide relief to the parties after the award is rejected.Fourth,although China has established an internal reporting and nuclear system in which arbitration awards are not recognized and enforced,the procedures of this system are time-consuming and complex,and are not transparent and open to the parties concerned,which is not conducive to the independent participation of the parties concerned.In order to actively deal with the issue of the expansion and exercise of the party's will autonomy,China needs to combine with the advanced international commercial arbitration practice experience,and timely fill and eliminate the institutional gaps and drawbacks in the domestic arbitration law.It is suggested that when the arbitration law of China is amended in the future,a more democratic and free international commercial arbitration system should be constructed by centering on the autonomy of the parties' will.In other words,the parties shall be given more freedom to exercise their own choice in the place of arbitration,the arbitration tribunal shall establish the principle of self-jurisdiction and the principle of collaborative jurisdiction of arbitration procedures,the arbitration internal appeal system shall be added,and the internal report and verification system shall be reformed into the appeal system,so as to provide the parties with more freedom to exercise their own autonomy.