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On The Substantive Law Applicable In International Commercial Arbitration

Posted on:2009-05-30Degree:MasterType:Thesis
Country:ChinaCandidate:M YuFull Text:PDF
GTID:2206360248450817Subject:International Law
Abstract/Summary:PDF Full Text Request
The substantive law in international commercial arbitration is the major legal bases to confirm the rights and the obligations and to resolve the dispute between the two parties, which also gives the determinative effect on the final arbitration. The article makes use of many legal ways to seek more practical principle in the adaptation of substantive law, such as analyzing the modern adaptable legal principles to resolve the dispute between the two parties. Besides the introduction and the conclusion, there are four parts in the article.The first part expounds the indirect adaptation of the substantive law substantive law which is used to resolve the dispute in international commercial arbitration. The arbitration tribunal should adapt the law that the two parties have selected already, which is also the identification of party autonomy in the adaptation of substantive law in international commercial law. It analyzes the range, the time, the ways and the limitations of selecting substantive law.When the two parties haven't selected the substantive law, or they can't get the consensus in selecting the substantive law, or they have selected the invalid law as the substantive law, the arbitration tribunal could use conflict principles which are thought to be proper to confirm the substantive law. The conflict principles include the conflict principles of the country where the arbitration is held and the conflict principles of the arbitrator's own countries and adapting most related principle to affirm the substantive law. The following analyzes the advantages and disadvantages of adapting these three conflict principles to confirm the substantive law.The second part is the direct adaptation of substantive law. It analyses the reason of the direct adaptation of the substantive law and then it expounds the range of the direct adaptation of the substantive law, including international treaties, international commercial practices and general principle.The most important point in this part is to give research on the direct adaptation of executive site law. By expounding the purpose and the value of international commercial arbitration, it demonstrates the reasonability of the adaptation of the law. At the same time, this section also illustrates some related problems about the adaptation.The third part is to use non-or extra-legal yardsticks to confirm the right and obligations between the two parties, including the conditions of the contract and the principle of justice.The fourth part introduces improvements of the adaptation of the substantive law in our country. The conditions and regulations about the adaptation of the substantive law in our country are not enough. In order to keep up with the development of the civil and commercial communication between different countries and the international commercial arbitration, our country should make related regulations clearly.The article ascends the position of executive site. Except party autonomy, the law should be adapted first. As applicable law, it can resolve the dispute, and confirm the rights and obligations between the two parties. As a whole, it can gain the goal of arbitration, accord with the value orientation and decrease the possibility of the refusal to the arbitration.
Keywords/Search Tags:International Commercial Arbitration, Party Autonomy, Executive site, Value Orientation
PDF Full Text Request
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