Research On The Public Policy Concerning The Application Of The Substantive Law In International Commercial Arbitration

Public policy is a very complex and flexible concept in International Civil and Commercial Litigation and Arbitration, and it is regarded as the "safety valve" for countries in the protecting their fundamental politics, economy, legal systems and moral values. Because of its autonomy and efficiency characteristics, International Commercial Arbitration contains distinguished particularity in the application of public policy in contrast with the litigation. The applicable of public policy is also closely linked to the pursuit of arbitration efficiency and justice value, and it plays a role in balance of the both. However, neither national legislations nor international conventions give clear explanations or definite public policy, which brings some difficulties to specific applications in the substantive law application in International Commercial Arbitration. One of such situations is that as an arbitrator, under what circumstances should he to consider which country's public policy which may not only ensure the enforceability of the award, but also respect the wills of the parties. Besides, in the process of specific application, the arbitrator should uphold what kind of criteria.From the perspective of the application of substantive law in International Commercial Arbitration, combined with related typical cases, this dissertation deeply analyses the existing problems of public policy in International Commercial Arbitration and propose corresponding solution ideas or solutions.In addition to the introduction and conclusion, this dissertation is divided into five parts:The first part is mainly to clear the definition of public policy, pointing out some of its essence and common features. Then, conclude the particularities of public policy in substantive law applications in the International Commercial Arbitration. Based on this, make comparative analysis on public policy, public order retention and the forced rules, and make it clear that countries may achieve national public policies through domestic legislation by means of public order retention and forced rules.The second part,on forward,discusses the pursuit value of public policy in substantive law applications of International Commercial Arbitration, and indicating the subtle contradiction between the pursuit of the private autonomy and public policy in International Commercial Arbitration. The public policy restrictions on private autonomy is appropriate and does not contain undue intervention to arbitrations. Secondly, efficiency and impartiality of the arbitration are critical value criteria, but it happens that the both conflict with each other in practice. Based on arbitration autonomy and the need of convenience, efficiency should be put to the main value goal, on this basis, taking into account the fair. Through limitations to arbitrators and the parties, public policy may coordinate the relationship between the two.The third part discusses sources of public policy in substantive law applications in arbitrations. Arbitrator to resolve substantive disputes is faced with the impact of public policies in different countries, including arbitration country, awards recognition and enforcement country, as well as arbitrator's country. Public policies of the above are not all required to consider in substantive law applications during arbitrations, but mainly to analyzes how to choose among them when faced with such potential public policies that might be applied.The forth part concentrate on the applicable precondition, applicable standards and applicable restrictions of public policy in the application of substantive law. Applicable precondition includes conditions that if one party applying for it or if the tribunal actively applicate to it. The arbitrator considers to applicate to public policy mainly based on the protection of national sovereignty interests and to ensure enforceability of the award. At the level of national sovereignty, mainly focuses on under what circumstances will arbitrator consider that the sovereign interests might be damaged, and then refers to public policy. Amiable arbitration constitutes a restriction to application, which is in the relation of unity or opposites to public policy.The fifth part proposes several modifications and improvement suggestions or solutions from the plight of legislation and existing practice in our country.