The Party Autonomy Principle And The Judicial Review In The Interational Commercial Arbitration

Along with the growth of international business and exchange, internationalcommercial arbitration is more and more widespread, which is an alternative disputesettlement system, with non-judicial nature. The party autonomy principle , as aspirit of the international commercial arbitration, works throughout, and thus it hasbecomes a hot topic in the academic community. In the society ruling by law, thearbitration is brought into the state legal system inevitably, and the judicial review isthe main form. Especially in the international commercial arbitration, the judicialreview is seen as a method to defend state judicial sovereignty. The judicial reviewin the international commercial arbitration has the branch of broad sense and narrowsense. Say from broad sense, it is more than supervision, support and assistant to thearbitration contained; say from the narrow sense, the judicial review of thearbitration is narrowly defined as the supervision of the court to the arbitration, suchas annulment, recognition and enforcement of arbitral awards, which is calledafterwards supervising. This paper will discuss under the narrow sense.In the practice of the international commercial arbitration, some parties agree tomodify the scope of the judicial review. Whether the national court should follow theparties'will to review the arbitral awards, the law varies in different countries; eventhe judgments are different in one country. There are different views in the legalcommunity,which can be divided into three categories. This paper is based on thedetailed analysis of the relative theories, and then put foreword the coordinationalway of justice and efficiency—selective appeal procedure within the arbitration.The selective appeal procedure within the arbitration is a self-perfect system toseek for self balance in the international commercial arbitration. Because of thereview of the substantive issues, the selectivity appeal procedure within thearbitration remedies the defect of the judicial review; because of the selectivity, theFlexible function of the party autonomy is brought into fullest play; because limitedin the procedure of arbitration, the intervention of the judicial and arbitral procedureis avoided. Therefore, the author thinks, as for the modification of the judicialreview scope in the international commercial arbitration, the establishment of theselective appeal procedure within the arbitration is the best choice.