On "the Denationalization Theory" In International Commercial Arbitration

Since 60 of last century, a tendency which denied "the seat theory" emerged in the field of theory and practice of international commercial arbitration. Its main purpose is to seek to detach international commercial arbitration from control by the law of the place in which they are held. Such "detached"arbitrations go by many names, they are referred to as denationalized arbitration by western scholars. Some scholars assert that enforceability of arbitral award ought not come from the place in which the arbitration is held and arbitration can hold not be subject to legal control from the seat of arbitration. The country in which the enforcement of the award is sought would itself only refuse enforcement notwithstanding the fact that the award may have been set aside by the court of the place in which it was made. The Denationalization Theory denied the seat theory and made the seat of arbitration lost its well established status in both the theory and practice of international commercial arbitration. At the same time, the effect which the applicable law to arbitral procedure is governed by the seat of arbitration would be greatly reduced. The core of Denationalization Theory is to seek to establish an international commercial arbitration system which would detach the law of the place in the arbitration is held, even detach any national law of particular countries. The Denationalization Theory destroys the hedge of traditional conception and system in international commercial arbitration, so it is regarded as a reform. The Denationalization Theory has influenced the theory and practice of international commercial arbitration deeply and this tendency has been supported by some famous scholars and can find its influence in legislation and judicial practice of some countries.At present, there is no legislation concerning "The Denationalization Theory" in our country and little theoretical research on the issue in the circle of scholars. This paper synthetically utilizes the method of comparison, theoretical analysis and demonstration to expound juristic theories with regard to "The Denationalization Theory". The author have taken account of all provisions of several international conventions and also focused on substantial legal stipulations or judicial cases ofseveral countries such as France, Swiss, Sweden and U.S.A. After the comparative research, the author has given brief evaluation and discussion on the basic arguments of "The Denationalization Theory" and its influence on legislation and judicial practice of most countries. Nevertheless, it is of great importance, as a last resort, to probe the efficient theoretical foundation for our arbitral legislation and practice and develop countermeasure better suited to the problems encountered in commercial arbitration at present.