Research On The Applicable Procedural Law In International Commercial Arbitration

Procedural law in international arbitration is not a new issue, but recently new challenge regarding it arose. In Ningbo Case, the award made by International Chamber of Commerce was considered to be a non-domestic award, without the Chinese nationality. This judgment led to a result that our court waived the judicial right to review and set aside the award, as well as Chinese law shall not be the applicable procedural law in such case. On the contrary, the consistent legal practice in China applies the principle of territoriality, namely once arbitration conducts within Chinese territory, Chinese procedural law shall apply. Clearly, the new trend cannot be reconciled with traditional practice, causing uncertainty in future development. Whether an upcoming reform towards a nation awards were to happen needs contemplation.With a fundamental concern of this issue, the thesis is trying to do a comprehensive and in-depth research about the applicable procedural law in Arbitration:The first Chapter starts from the basic concept, clarifying the relationship between arbitration procedural law and related concepts. This chapter then analyzes the significance of the arbitration procedural law and briefly set out a big picture about three methods regarding application of procedural law.The second chapter focuses on the issue of Lex Arbitri as procedural law. With an introduction of theoretical basis, in-depth analysis of Model Law, English law and German law coherently with legal practice of the U.S. and British case law, the article reach an evaluation about the application of Lex Arbitri in currently circumstance. The chapter emphasizes the significance of seat of arbitration as a legal concept and briefly analyzes the identification of the seat in real cases.The third chapter mainly examines party autonomy in arbitration procedural law. After analyzing the theoretical basis and national legislation, restriction on parties’ freedom to choose as an important issue is raised. Concept of mandatory rules and its appropriate reflection in legislation is discussed.The fourth chapter reviews the procedural law of arbitration under denationalization theory. Through theoretical analysis and the legislative and judicial practice, both rationality in the goal of this theory and shortages with respect to judicial assistance is clearly demonstrated.Chapter five draws a conclusion, principle of territoriality shall apply without reform. The principle ensures a legal frame for assisting arbitration, which guarantees the legal certainty and judicial supervision. The modification of relevant legislation, common application of this principle worldwide, immaturity of denationalization all points our legal practice to this direction. The current inconsistency may be solved by establishing a modern principle of territoriality with emphasizing the connection between procedural law, seat and nationality.Facing the inconsistency issue between traditional territory principle and new trend, this thesis hold resolution lies in the recognition of lacking the lex arbitri as a legal concept and reform of territory principle to establish a solid connection among the applicable principle law, the nationality of awards and legal concept of lex arbitri. The perfection of territory principle shall refer to legislation of English law, German law and Model law on the basis of Article 65 of Arbitration Law. The modification aims to stipulate that the application of procedural law shall be determined by lex arbitri as a legal concept which may establish the modern territory principle for a legal frame to guarantee the judicial certainty and support the award.Meanwhile, party autonomy in choosing arbitral rules and mandatory rule issue shall be focused in future legislation.