A Study On The Seat Of Arbitration In International Commercial Arbitration

With the development of modern international political and economic affairs, civil and commercial intercourses between different countries are more frequent than any time before. The frequency of arbitration used to settle international commercial dispute is rising greatly because its agility, convenience, expeditiousness, specialization and privacy than traditional dispute settlement method, such as litigation. Not only is an ordinary geographical conception, the seat of arbitration also a significant conception with very important legal meanings. The seat of arbitration connects arbitration activity with the legal system of particular country, leaving the domestic laws of that country applied to the arbitration actions in these territories. In case the parties choose a country as the seat of arbitration, they must accept regulation of these domestic laws. Since the 1960s the theory of denationalization of international commercial arbitration claims that international arbitration should escape from the legal regulation of the seat of arbitration even any other domestic law, which does an impact to the traditional theory. This essay concludes the significant role of the seat of arbitration, the method to determine it, the defects of China's legislation about seat of arbitration, and make some proposals to improve it tentatively.This essay is nearly 30000 words and comprises 4 chapters.Chapter 1 defines the legal conception of seat of arbitration and its development. The first section in this party clarifies legal meanings of seat of arbitration; distinguish it with places of hearing, meeting and signature. And in the second section the author presents the theory of denationalization of international commercial arbitration which has weakened the important role of seat of arbitration. Although there are some logical factors, but that this theory totally abandon the legal regulation of seat of arbitration to the arbitrational action is not feasible, and it's too radical.Chapter 2 concludes the role of seat of arbitration in international arbitration. Firstly the seat of arbitration plays a crucial role to determine arbitrational procedure and substantive dispute, especially there is high possibility to adopt the law of seat of arbitration when parties do not have promise about applicable procedural law and substantive law. The second section presents that the judicial department of seat of arbitration how to make supervise to arbitration agreement, arbitrational procedure and award. The third section discusses the method to determine the nationality of an international award, and concludes the significance of the seat of arbitration in the process.Chapter 3 deals with how to determine seat of arbitration. The first main measure is complying the parties'agreement about it, including temporary arbitration and institutional arbitration. At the same time the author involves some problems arising during the agreement, expect to help parties to make clear, succinct agreement. In the following section the author points out arbitration tribunal how to determine seat of arbitration according with rules of procedure when parties have no agreement about it.Chapter 4 explores current defects of China's legislation about seat of arbitration and rectification to improve. In the first section the author compare our legislation with prevalent mode in other countries, and find out the problems in our legislation on that basis. In the second section the author tentatively proposes several advices to ameliorate domestic laws, such as defining the conception of seat of arbitration, using seat of arbitration in stead of seat of arbitration organization, shaping a system to determine it.