The Proper Principle Of The Law Applicable To International Commercial Arbitration Agreement

The matter of the legal application of the International Commercial Arbitration Agreement(ICAA) is of complication. It is of great difference both in theory and practice. The research of it contains practical meaning. In this paper, the author analyzed its complication systematically, comprehensively and concretely. The author's train of thought is like that of a physical doctor in an operation. Such researching way, which cuts problems apart, is a main reveal of the Proper Theory in the legally applicable areas of the ICCA, though it is not bound within that area. After gave the researching subject a complete definition and statement, the author will give statement, conclusion and comment to the existing theory and practice one after another. Way of comparison is mainly used. Merit and demerit could be analyzed after comparison. Such comparing way is not only the basis of out premises, but also the direct source of our theories sometime. In the last, the general conclusions and concrete regulations will emerge. Though the general conclusions—the Proper Theory is of importance, the researching way and basic train of though that leads such conclusions are of more importance. Also, we consider those concrete legally applicable regulations of less importance. Because not only we are not and share no intensions to be the legislator to discuss the matter of the legal application of the ICCA, but also we could not clearly decide which country we stand for as a legislative body. Different countries have different legislations because they have different actual situations, which are or should be the basis of a country's legislation. Therefore, it will do no good to gain a general and original conclusion from the view of a legislator. Based on the above mentioned train of thought, this paper was divided into three chapters. In the first two chapters, the complex matter of the legal application of the ICCA was analyzed and a general conclusion was made. In the third chapter, concrete regulations were made tentatively, which were also the concrete embodiments of the general conclusion. The complication of the matter of the legal application of the ICCA is mainly revealed in the following ways: the complication of the content of the legal application boundary, the complication of the formation of the situation of the legal matter or legal dispute and the complication of the legal Proper Theory, its mean and its theory itself. The different definition of the legal application boundary of the ICCA originated primarily from the different understandings to the boundary of the definition of the ICCA. There is no general acceptable definition of the words of "international"and "commerce". Different countries have different definitions. Yet, generally speaking, these two words should be interpreted in a general way. The understanding to the word of "international"will decide whether a matter of the legal application of the ICCA should be within our researching scope. In common situations, a domestic arbitration agreement should obviously apply for its domestic law. The different understandings to the word of "commerce"will directly influence the legal Proper Theory. For example, in the arbitration about labor or consume contract or about product responsibility, the principle of protecting the profit of the weak litigant is superior to the principle of the "litigant's-autonomy-of-will"and be considered by arbitration body and legal court. While in the arbitration about environmental pollution or natural resource exploration, public order and public profit should become the factors to be considered primarily. In this paper, the matter of the legal application of the ICCA in the disputing contract is mainly discussed. Also, it gave lights to the fact that the complication of the legal application boundary of the ICCA originates from the diversities of the formation of the legal dispute, including the competence of the two parties inan arbitration, the form of the arbitration agreement, the possibility for arbitration for the disputing matters and the establishment and effective of the arbitration agreement. Because the transference of the arbitration agreement is considered to have its specialty, it was not discussed in this paper. The legal matter of the ICCA and its legal dispute can be divided into seven situations. The legal application includes not only the legal court, but also the arbitrator, the arbitral court and arbitration bodies. The property of the arbitration agreement and the value acquirement tendency within the consideration of the legally applicable bodies revealed differently according to different situations. As to the property of the arbitration agreement, whether it is a contract or judiciary, it is closely related to the effectiveness basis of the arbitration agreement. Therefore, four kinds of theories concerning the effectiveness basis of the ICCA was discussed and commented in this paper. They are the theory of legislation, the theory of contract, the mixed theory and the theory of autonomy. We consider the mixed theory is more acceptable because the arbitration agreement obtains the property of both the contract and the judiciary. They only revealed differently according to different legal applicable bodies, different legal matters or different situations of the establishment of the legal dispute. Here, we gave two important kinds of value criteria for the legal application of the ICCA: the effectiveness and order. For those who pursues the effectiveness, the arbitration agreement property is always considered as a contract, therefore, the "litigant's-autonomy-of-will"principle is attached importance to and make it effective as much as possible. While for those who purses the order, the arbitration agreement property is always considered as a judiciary, therefore the principle of the arbitration and the principle of the legal court are thought highly of. We should not simply look the arbitrator and the arbitral court as the effectiveness pursuers and the legal court the order pursuer, because to those public orders which concerningthe arbitration site or the execution of the arbitration, the arbitrator or the arbitral court could not go any way and the legal court should take the effectiveness into consideration in the premise of not violating the public order in the site of that legal court. After all, currently or from the development tendency, the effectiveness is the primary value criteria in the whole acceptable area of the ICCA. The seven situations of the legal matters and legal dispute of the ICCA includes the disagreement to the effectiveness of the arbitration agreement by the applicants, the request for ascertain or agreement to the effectiveness of the arbitration by the applicants and the request for the cancellation or not acknowledgement or not execution of the arbitration by the authorities in charge by the applicants in the cues that there exists disagreement in the effectiveness of the arbitration. We analyzed the different value acquirement tendencies by the two kinds of legal applicable bodies under different situations by discussing them one by one. In the following second chapter, the legal Proper Theory about the ICCA, its mean and theory itself is introduced. This part discusses, in order, the following 8 principles and methods: the choice of law based on the nature of the law; the choice of law based on the nature of the legal relationship; the self-governed choice of law based on the litigant's intention; the choice of law based on the "closest-related"principle; the choice of law based on whether it's beneficial for the acceptance and the complementation of the judgment abroad; the choice of law based on the "make-it-effective"principle; the direct application of the transnational legal concept; the choice of law based on segmentation. These principles and means are just like those different tools in the bag of a barber which might be different from one another according to their respective major or minor importance. Anyhow, the focal point of our research is to find out the proper tool in the proper time. It is unavoidable forus to discuss about the difference between the definitions of "the applicable law for the ICCA"and "the proper law for the ICCA"because we wrote this paper though comparison and introduction of the "coordination theory"and the "separation theory"in the part that concerning the existing theories about the legal application of the ICCA. We consider that the proper law for the ICCA only refers to some certain body law or procedure law, in which the litigant's concrete rights, duty and responsibility is decided though the introduction of the criteria of solving disputes. Accordingly, the applicable law for the ICCA refers to the proper law of the competence for signing contract, the proper law of the form of the arbitration agreement, the proper law of the possibility of the arbitration and the proper law of the ICCA, which are established though the introduction of the criteria of solving disputes. The above mentioned proper laws mainly belong to the procedure law in most situations. In the last, a general conclusion was made. The Proper Law of the ICCA means choosing different principles and means to different laws according to the legal disputes of the ICCA and the concrete situations in which the legal matters and legal disputes arise. Such choosing makes correct preserve and forsake of the value between the effectiveness and order. So the legal matters and legal disputes can be solved promptly and rationally in the premise of not violate to the relating public order of the country and the country's sovereign. Chapter Three is about The Concrete Embodiment of the Proper Theory in the legal application of ICAA. The Application of the Proper Theory by the Arbitral Court or the Arbitrator. The Proper Theory on the legal application of the competency of the arbitration agreement embodies in its concentration on the "litigant's-autonomy-of-will"principle, and its complementation by the"make-it-effective"principle to make the proper law. The proper law, which decides the form of the arbitration agreement, can apply the "litigant's-autonomy-of-will"principle in the first place. If the litigants have no intention to choose, the arbitral court should apply the "make-it-effective"principle. The proper principle of the legal application of the arbitrability of the disputing matters embodies in its concentration on the "litigant's-autonomy-of-will"principle and it complementation by the "make-it-effective"principle to make the proper law. Yet at the same time, it should not violate the compulsory regulations of the making and the executing site of the arbitration award, which embodies the principle that it should be beneficial for the acceptance and implementation of the judgments; the proper Theory principle for the making of the arbitration agreement only embodies the "litigant's-autonomy-of-will"principle and the "make-it-effective"principle. The Application of the proper principle by the entrusted court before the making of the arbitration award. If the main body of the applicable law is the entrusted court before the making of the arbitration award, the proper principle of the legal application of the competency of the arbitration agreement should apply the "litigant's-autonomy-of-will"principle in the first place, but the choice of the litigant should be practically related to the arbitration agreement. Yet, if the litigants share the same nationality, the same residence, and the same places of business, the court should directly apply the law of the nationality, the law of the residence ands the law of the place of business. If the litigants have no intention to choose and they share the different nationalities, residences and places of business, the court should choose the applicable proper law to make the arbitration agreement effective. The proper principle of the legal application of the form of the arbitration agreement embodies firstly the"litigant's-autonomy-of-will"principle, yet, if it is limited and the litigant has no intention to choose, the court should choose the applicable proper law to make the arbitration agreement effective. The proper principle of the legal application of the competence of the disputing matters embodies the court–site principle. The proper principle in the making of the proper law of the arbitration agreement embodies its concentration on the "litigant's-autonomy-of-will"principle, and its complementation by the "closest-related"principle, and the closet related place is chosen conditionally between the arbitral site and the court site. The Application of the proper principle by the Authorities, such as the Court who asks for the cancellation of the arbitration agreement. If the main body of the applicable law is the court who asks for the cancellations of the arbitration award, the proper principle of the legal application of the competency of the arbitration agreement and that of the form of the arbitration agreement embodies in its concentration on the "litigant's-autonomy-of-will"principle and its implementation by the "make-it-effective"principle. The proper principle on the legal application of the arbitrability of the arbitration agreement embodies the "court-site"principle; and the proper principle for making the proper law of the arbitration agreement embodies in its concentration on the "litigant's-autonomy of-will"principle, and its implementation by the "court-site"principle. The Application of the Proper Principle by the Authorities who ask for the rejection to accept or implement the arbitration agreement. If the authorities, such as the court who asks for the rejection to accept or implement the arbitration agreement, are the main body for the legal application, the proper principle of the legal application of the competency of the arbitration award and that of the arbitration agreement form, embodies in its concentration on the "litigant's-autonomy-of-will"principle, and its...