On Autonomy Of International Commercial Arbitration And Judicial Oversight

As one of the efficient methods in resolving transnational commercial disputes, the international commercial arbitration, for its high party autonomy, flexibility in application of law and efficiency of execution of arbitral awards, has been widely adopted. Since the promulgation of Chinese Arbitration Law in 1994, our arbitration practice has made a great progress and met the demands of out open-door policy and market economy well, but, with the depth of out market economy development, kinds of problem emerged from our arbitration system: on one hand, there are many stern provisions on the arbitral party autonomy in aspects of validity of arbitration agreement, arbitrability of disputes, jurisdiction on jurisdiction of arbitration tribunal which fall short of the principle of party autonomy advocated by international arbitration practices ; on the other hand, there are different judicial review standards between domestic party arbitration and foreign party involved arbitration which violate the equality principle of arbitration party. Therefore, making a clear definition between party autonomy and judicial supervision is the key to improving our arbitration system and keeping in conformity with international practice.The relation between party autonomy and judicial supervision is discussed systemically in comparative study method in the dissertation in order to make harmonization between party autonomy and judicial supervision by solving some conflictions and improve our commercial arbitration system.In the first part of the dissertation, a description on the theories of party autonomy and juridical supervision is presented, based on which a systemic summary and analysis on the features and value of them in arbitration system is made in macro aspect.In the next part, by comparing the practices of different countries on the issues of autonomy of arbitral party, arbitrability of disputes and juridical supervision, a conclusion on the trends of modern international arbitration development in micro aspect .In the last part of the dissertation, the deficiencies of our arbitration system are also analyzed, and then a new legislation proposal is envisaged, based on the situation and demand of China with the successful legislative experiences of other jurisdictions for reference.The most remarkable features of the dissertation consist of:The first is the comparative method taken in the dissertation. By comparing the different practices of countries between Anglo-American law system and continental law system, a conclusion on trends of international arbitration development is made.The second is the positivism method taken in the dissertation. The issue on harmonizing the party autonomy and juridical supervision is discussed not only theoretically but also in way of positivism. The legal system and relevant cases in Anglo-American law and civil law countries are also reviewed in order to take out some principles scientifically.The third is that this dissertation serves for the purpose of promoting our arbitration legislation and improving the practice of our juridical supervision. Based on the study of positivism and comparison on party autonomy and judicial supervision, the specific legislative proposals are put forward in the dissertation after the deficiencies are pointed out and deeply analyzed.