A Study On The Non-domestic Theory In International Commercial Arbitration

Traditionally, the process and consequence of arbitration should be ruled by the legislation in a country. Since 1950s-1960s, there comes a booming theory that the autonomy of the contract parties’will should be respected so that the procedure law can be ruled out. This will make a arbitration independent from the country where it be done.As the aspect of traditional theory, due to the arbitral in this theory award from the specific legal system of areas, they can not be seen as arbitrations in a country. These arbitrations are called denationalization.The goal of the denationalization is to party autonomy, which means control the processes and the results of international arbitrations by stipulations of the places and proceedings of arbitrations. However, there does not exist a complete party autonomy, autonomy must be supervised by a legal system. A certain degree of freedom must be guaranteed by certain judicial supervision, a party autonomy will be denied by itself. Therefore party autonomy and legal supervision is both contradictory and mutually support. This contradictory relationship is both the focus of different doctrine and dynamic of development in some theories. This article will start from this basic contradiction and aiming at this contradiction, trying to give systematic exposition of these two theories.There will be five sections in this article. Sectionl is to introduce the basic content of denationalization and the policy target which emphasize the autonomy in international arbitration. Section2 will show the impact on the traditional theory by introduce some differences between these two theories. I will introduce the impact of party autonomy on the denationalization in Section 3, this part refers to the key point of this article:the contradiction between party autonomy and legal supervision. In section4, I will introduce several cases about denationalization all around world. In section5, I will introduce the situation which the denationalization theory in China and the possibility which the theory being used in China.