On The Declining Principle Of Non-Arbitrability Of The Subject Matter Of Disputes In International Commercial Arbitration

Major: International LawSpecialty: International Economic LawAuthor: Cheng LingliAdvisor: Prof. Liu XiaohongArbitrability of the subject matter of a dispute plays a basic role in commercial arbitration both theoretically and practically. To refer a type of dispute without arbitrability, i.e., of non-arbitrability to arbitration, would probably lead to non-enforcement of an arbitration agreement, stay of an arbitral proceeding, nullification or non-enforcement of an arbitral award. The principle of Non-arbitrability is the centralized embodiment of state's control over arbitration. Since 1960s, legislatures and courts all over the world have shown a favorable attitude toward commercial arbitration and the importance of the principle of non-arbitrability has been in an international trend of declining. This article focuses on the declining trend of the principle of non-arbitrability and the cause of formation thereof in the field of international commercial arbitration. Comments will be made towards Chinese legislations on arbitrability in light of the declining trend aforesaid and preliminary suggestions on future revision upon these legislations would be put forward accordingly. This article is composed of five chapters. Chapter I is the general introduction and analysis on the principle of non-arbitrability, with emphasis on the particularities of this issue in international commercial arbitration. Chapter II and III explain the specific causes of the declining trend in the principle of non-arbitrability in international commercial arbitration, with the former focusing on the enlarging scope of subject matters of arbitration while the latter focusing on other causes of the formation of this international trend, such as the delayed judicial supervision upon international commercial arbitration, application of substantive rules for the determination of arbitrability, etc. Chapter IV analyzes the primary reasons of the declining trend in the issue of arbitrability with reference to the worldwide judicial reformation and ADR movements since late 20th century and the basic reason for the existence of the issue of non-arbitrability, as well as prediction into the future of this international trend in commercial arbitration that the phenomenon of non-arbitrability will not decline as to die out since the basis of this issue remains. The last Chapter of this article puts highlights on China's legislative and judicial practice on the same topic, with the conclusion that the future revision of China's legislation on arbitrability should pay attention to the balance between the control by state and the autonomy of arbitration as well as between the international trend and the special needs of this country.