International Commercial Arbitration Of Non-domestic Theory Research

In International commercial arbitration, "Lex Arbitri Theory" has been dominated by a monopoly for a long time. Arbitration procedure is governed by the law of where the arbitration holds. This rule have been recognized and established in the theory and legislation of international commercial arbitration. However, over the past 30 years, arbitrational theory and practice have nurtured a new theory, denying the traditional "Lex Arbitri Theory". That is "Denationalization Theory". The core of this theory is to maximize party autonomy, and get rid of the jurisdictions of sovereign states, especial the arbitration conducted in its territory. The "Denationalization Theory" has influenced international commercial arbitration deeply. This tendency has been supported by some famous scholars and also can find its reflection in legislation and judicial practice of some countries. But there is no article on arbitration procedure law in our arbitration law. So, studying "Denationalization Theory" is not only for appraising, but also for providing some useful suggestions on legislation.In this paper, both comparative analysis and empirical analysis were used. Starting by the emergence and development of the "Denationalization Theory", the former part analyzes the concept, connotation, and foundation of this theory. Then we focus on the advantages and disadvantages of the "Denationalization Theory" under the current developments of international commercial arbitration, in order to provide some useful suggestions on our arbitral legislation. This paper includes four main parts:Part one presents the basic meaning and foundations of "Denationalization Theory". It starts by the shortage of "Lex Arbitri Theory". Then we begin to study the basic meaning and foundations of this theory, also the practice basis and theoretical basis which support this theory. For the purpose of the following study, we told the differences between arbitration procedure law and the substantive law, arbitration procedure law and arbitration rules. Part two uses the means of practical analysis to illuminate the current legislation situation of this theory in international conventions and relative countries. Part three analysis the theoretical disputes about "Denationalization Theory" and the current developments of international commercial arbitration. Then we focus on the advantages and disadvantages of the denationalization theory under the current situation, in order to make a correct evaluation of the theory. Part four back to our arbitral legislation. According to the analysis on denationalization problems which our law has to face, we can provide some useful suggestions on legislation.In the end of this article, we come to the conclusion: "Denationalization Theory" is still not mature enough, and has to encounter many difficulties in practice. However, it also has some advantages under the current situation. We can avoid the disadvantages of this new theory and accept the rational elements, for the developing of international commercial arbitration. With regard to our arbitral legislation, we suggest that it should prescribe the arbitration procedure law. It would be best with the principle that arbitration procedure is governed by the law where the arbitration holds, and use the "Denationalization Theory" as a supplement.