Autonomy In International Commercial Arbitration

With the speeding up of the process of world economic globalizatibn, the economical communication among countries has increased with high frequency. Meanwhile, international commercial disputes have been rising up from both numbers and kinds. Among the ways to solve them, arbitration is the most emphasized, most effective and most institutionalized one. Autonomy of will, the basic principle in international commercial arbitration, plays an important role. This thesis analyzes international commercial arbitration systems from the perspective of autonomy of will. The analysis of the autonomy of will from both theory and practice would be done. This thesis is divided into six parts:Part One is about international commercial arbitration and autonomy of will. The origin and development of autonomy of will and its ideological and socio-economical reasons are talked about first. Then the important role of autonomy of will in international commercial arbitration is also given. In the end, talk about autonomy of will in resolving the international commercial disputes. International commercial arbitration, as an important way of international commercial disputes resolution, is widely used. Autonomy of will in the procedure of international commercial arbitration, actually refers to the right to choose procedure. In international commercial arbitration, the parties realize the right of choosing procedure by arbitration agreement, which fully embodies the autonomy of the party.Part Two is about arbitration agreement and autonomy of will. First, the author analyzes the possibility of arbitration of disputes. At present, many countries have reduced the limitation of disputes which can be arbitrated. The broadening of the scope of arbitration reflects the use of autonomy of will in international commercial arbitration. Then, the author analyzes the choice of the evidential method of the arbitration agreement. The legislation of most countries do not make this dear, but in practice, choosing the evidential method of the arbitration agreement by the parties automatically is the first way in making sure of the choice of arbitration agreement law. Part Three is about the choice of the procedure law and autonomy of will. Arbitration procedural act is a separate legal system. Legislation and judicature in China and other countries in the world considers the party's choice as the first way in the use of arbitration procedural act. This thesis analyzes the theoretical foundation of choosing the arbitration procedural act by the party, related legislation and judicature practice, and limitation of choosing arbitration procedural act. When the party hasn't made the choice, the law of the country or states where the arbitration is performed will be used. In recent years, denationalisation theory appears and becomes a new trend, which intends to set up a new and completely autonomous international commercial arbitration system and receives support from a lot scholars.Part Four is about the choice of law in entitative problems and the autonomy of will. The choice of law by the party is the most important way to decide the use of entitative law in intemational commercial arbitration. This part first introduces the common use of the autonomy of will in choosing arbitration entitative law, and then, analyzes in details the time, scope and limitation of choosing law by the party.Part Five is about the Autonomy of Will in the foreign arbitration in China. First, the author introduces the present situation of legislation in foreign arbitration in China. Then, some improving suggestions are given after comparing it with international commercial arbitration. We suggest that China improve the legislation of arbitration, reform the traditional arbitration, enlarge the scope of disputes that are suitable to arbitration, and take in the Denationalisation theory to suit the development of the foreign economy and arbitration.