International Commercial Arbitration Nationality

In the practice of international commercial arbitration, whether or not an arbitralaward has a nationality and the methods to determine the nationality of an arbitralaward are key issues. The majority of people agree that an arbitral award should havea nationality, and the geographical criterion has been widely adopted to determine thenationality of award by international conventions, arbitration rules of arbitrationinstitutions which are globally known, legislations of different nations, and thepractice. Within the scope of geographical criterion, the most essential one is thecriterion of the seat of arbitration. Notwithstanding various locations of arbitralproceedings, the seat of arbitration shall be the criterion to determine the nationalityof an award. Such opinion has been widely accepted in the practice. The first part ofthis paper will give an introduction and an analysis to this opinion, which iscomparatively conventional.Nevertheless, different theoretical views still exist, among which the theory of“denationalization” is comparatively typical. This paper will give an introduction tothe essence of such theory, and will pick some samples, including cases, legislationsfor analysis. However, the theory of “denationalization” was not widely accepted inthe practice, as it completely denied the state power’s contribution and support to theeffect of award and arbitral proceedings. However, a few pioneering countries in theirjudicial practice did express the intention to accept the theory of “denationalization”to some extent. The second part of this paper will give an introduction and an analysisto the theory of “denationalization”.Regarding the determination of an arbitral award’s nationality, the practice ofChina is comparatively special. Furthermore, China has to deal with the determinationof the “nationality” of awards made in different jurisdictions of China, namely HongKong, Macau and Taiwan. Combined with the legislative and judicial practice ofChina, the third part of this paper will give an introduction and an analysis to suchissues, and will give advisory opinions to China’s legislative and judicial activities.