On "the Theory Of Denationalization" Of The Procedure Law Applied To International Commercial Arbitration

Compared to International Civil Procedure and other Alternative Dispute Resolutions, International Commercial Arbitration is much more favored by International Commercial participants, due to its typical characteristics including but not limited to that participants enjoy more rights, the arbitrators are more independent, neutral and professional, the procedure is more flexible, and it is much more efficiency and the economy. The procedure law applied to international commercial arbitration exists independently from the subject law. Experts have understood that the procedure law has its special values and makes huge impact on legislation and legal practice.The traditional"Lex Arbitri Theory"confesses that parties have rights to choose subject laws applied to international commercial arbitration, but it insists that the procedure law shall in accordance with the laws of Seat. This theory still dominates the procedure law of international commercial arbitration, and is used broadly by the legislation and legal practice around the world. However, as cases become more complicated, and the principal of Intent Autonomous is further strengthened, a new theory, which is called as"the Theory of Denationalization", came out in the 1950th . It challenged the traditional"Lex Arbitri Theory", and has developed and matured in a very fast pace. So some experts estimates that one day "the Theory of Denationalization"shall repeal the"Lex Arbitri Theory", and become the major principal of the procedure law applied to international commercial arbitration.The paper shall firstly introduce the general information of the procedure law applied to international commercial arbitration, and analyze two completely different theories, and also their respective advantages and disadvantages, trying to get the conclusion that although"the Theory of Denationalization"still has some shortcomings, its substance complies with arbitration's nature and requirements, and also is in accordance with the requirements of international commercial arbitration's development. If we can combine it with some advantages of the"Lex Arbitri Theory", it will promote both the theory and practice of international commercial arbitration, and also provide lots of enlightenments to China's arbitration theory and practice.The paper shall be divided into five chapters, the first chapter shall demonstrate the general information and development of the procedure law applied to international commercial arbitration, within which the traditional"Lex Arbitri Theory"shall be dissected and analyzed, and also the content and background of"the Theory of Denationalization"shall be introduced briefly; the second chapter shall demonstrate the production procedure of"the Theory of Denationalization", and specify its intention and substance, so as to show its differences from the traditional theory; the third chapter shall analyze the rationality, necessity, feasibility and performability of"the Theory of Denationalization"from the aspects of jurisprudence and legal practice, to justify"the Theory of Denationalization"is completely compliance with the nature and requirement of international commercial arbitration; the fourth chapter shall expound the shortcomings of"the Theory of Denationalization", which are pointed out by those experts who reject the theory, after the recollection of these shortcomings, the writer tries to overcome those true shortcomings of"the Theory of Denationalization"by combine it with the advantages of the traditional theory, in order to make the theory perfect; the last chapter shall analyze the enlightenments of"the Theory of Denationalization"to China's legislation and legal practice.