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On The Principle Of Autonomy Of Will In International Commercial Arbitration

Posted on:2009-01-21Degree:MasterType:Thesis
Country:ChinaCandidate:C X HuangFull Text:PDF
GTID:2166360245988032Subject:International Law
Abstract/Summary:PDF Full Text Request
As the chief principle used in international commercial arbitration, the principle of autonomy of will has been widely accepted as a rule to decide the right law in arbitration. However, there are still many problems to be studied in its application in international commercial arbitration, such as the validation of form of arbitration agreement, the related problems of its use in online arbitration and so on.By the use of the method of comparative analysis and comprehensive analysis, this article firstly introduces the origination, the development of the principle of autonomy of will and emphasizes its importance: it's the sole of the international commercial arbitration.Secondly, this article expounds its application in international commercial arbitration, including the recognition, protection, and limitation on the principle of autonomy of will in the legislation of international commercial arbitration. Such recognitions and protections are reflected in the application of substantive law as well as the procedure law. Such limitations come from mandatory provision and public policy.Thirdly, this article makes a through discuss on another form of modern arbitration—online arbitration. Regarding the issues of the forms of online arbitration agreement, the scope of online arbitration and the decision of the place of online arbitration, how to adapt the principle of autonomy of will? According to the《1996 -UNCITRAL Model Law on Electronic Commerce with Guide to Enactment》, the online arbitration agreement belongs to the written form. As for the scope of online arbitration, the principle of autonomy of will should be applied. It's no use to restrict the range of online arbitration mechanically. As for the place of arbitration, "a supposed place of arbitration" should be allowed to assume.Finally, the article puts forward some suggestions on optimization of the principle of autonomy of will in our law of Arbitration. Our law of arbitration should recognize implied agreement of arbitration. We should establish a comprehensive and systematic legal system of international commercial arbitration, with the priority of the principle of autonomy of will. We should make research on online arbitration and further the process of relative legislations actively.
Keywords/Search Tags:international commercial arbitration, the principle of autonomy of will, adaption of law, online arbitration
PDF Full Text Request
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