Study On The Ascertainment Of Foreign Law In The International Commercial Arbitration

In practice, even a simple International Commercial Arbitration case may involve three or four countries’legal systems and rules. In most cases, the parties are worried about at a disadvantage situation in the referee because of not understanding each other’s country’s laws. Thus, the parties are reluctant to apply the laws of other countries; they are willing to apply a third country’s law which is fair for both of them. If a national law of the arbitration shall be applied, and it’s not the parties’countries’law, even is foreign law for international commercial arbitrator, it is very significant to identify the correct content of the foreign law on the controversial decision.There are four parts in this paper. Part One, clear that the characteristics of identifying the foreign law in international commercial arbitration. In most cases, the theoretical and practical circles only discuss to identify foreign law in civil proceedings problems, rarely involving in International Commercial Arbitration or the scope of application in the arbitration proceedings wide, which are more worthy paying attention to. The characteristics to identify foreign law mainly by the arbitral tribunal are different with the range of discretion with the court. The identification responsibility and the identification methods are different from the International Civil Litigation.Part Two, a detailed study of the main body to identify foreign law in International Commercial Arbitration and the identification of shared responsibility aspect, borne by the parties’responsibility to identify the foreign law. Identification of foreign law is mainly based on experts’ opinion, including the arbitral tribunal to identify the foreign law by the experts and the experts by parties hired.Part Three, the treatment of "Failure to Prove Foreign Law" in international commercial arbitration. In practice, cases fail to prove foreign law often exist, determining standards includes three aspects which are the period, the responsibilities distribution and the methods of "Ascertainment of foreign law". International commercial arbitration institutions fail to reach an agreement in this issue; however, they do have some common practices:(a) Applying the local law, this method is widely accepted by arbitration institutions all over the world,(b) Applying the general principles of law.(c) Applying International trade practices.Part Four, the improvement of "China’s Ascertainment System of Foreign Law" dealing with foreign-related commercial arbitration."Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China" which is newly promulgated, making brand new regulations about Ascertainment of Foreign Law, it puts arbitration institutions into the ascertainment subject for the first time ever, however, there’re still some flaws and shortcomings exist in the specific applications. This paper aims to combine the general theory of international commercial arbitration with international practice, improve our ascertainment system of foreign law which is dealing with foreign-related commercial arbitration, and make better use of arbitration in China’s diversified mechanism of disputes settlement.