On Legal Transplant And Localization: From The Duality System Of Arbitration

In studying arbitration system in our country, there is an interesting phenomenon. Arbitration system in our country is a duality system in which arbitration is divided domestic arbitration and international arbitration. Different actions will enter into different arbitrational procedure, apply different law. In addition, request for arbitrator and the relation between arbitration and court differ in two sorts of arbitration. In law-making and law-revising in our country, there is a law that the rules of domestic arbitration and ideas gradually be close to the rule, principle and idea of international arbitration, while the rules of international arbitration gradually be close to international common practice, but, in a rule, arbitration system in our country be in possession of characteristic of itself. In this dissertation, the author will explain the phenomenon and refine the ideal model.This dissertation can be divided into three parts. In part one, the author analyze comparatively in norms the duality of domestic arbitration and international arbitration, sum up the evolvement law of the arbitration system in our country, and summarize the characteristic of our arbitration system. In part two, some conception in the theory of legal transplant and localization and relevant conception and relation among these conceptions are explained in details, such as legal transplant, local recourse, foreign recourse, localization and globalization. In part three, the author establishes ideal model whether an item of legal system can be transplanted successfully depends on the success of the following there stages, namely government's authorization, elite's promulgation, and people's acceptance.