Research On The Ascertainment Of Foreign Law In International Commercial Arbitration

Today,arbitration is the most common form of dispute resolution in international transactions and international commercial relationships.The reason for its success is generally attributed to a number of advantages that arbitration has over litigation in national courts. One of the most important advantage is the party autonomy, parties may choose arbitration institutions, arbitrators, rules, and applicable law. In practice, the parties may choose foreign law as the applicable law apply to arbitration and the tribunal in accordance with correlation rules or by hisself to decide the applicable law may also be foreign law, how to ascertain the content of the foreign law appeared on the scene, which beneficial to apply applicable law properly and corrently,defend the principle of party autonomy, so as to promote the healthy development of international commercial arbitration.However, there is no specific rules for parties and the arbitral tribunal to ascertain the content of the foreign law, the civil litigation rules can not applies to international commercial arbitration directly, which makes there are no rules to rely to accertain the content of the foreign law in international commerical arbitration and so that caused some confusion. Which would harmful to enhancing the confidence of the parties to international commercial arbitration and it’s healthy development.Addition to the introduction of this article is divided into five parts:The first chapter is an overview. This chapter analyzes the implication, the feature and necessity of ascerntainment foreign law in international commercial.We also analyzed correlation rules of ascertainment foreign law in international commercial arbitration, thus indicating the importance of improving the rules of ascertainment of foreign law in international commercial arbitration.The second chapter is the responsibility of the parties and arbitral tribunal in ascertain foreign law in international commercial arbitration.This chapter through the introduction of " iura novit curia " divide the responsibility of the parties and the arbitral tribunal. This chapter laid special stress on the relevant of the tribunl conducting the ascertain foreign law.The third chapter is the methds of ascertain foreign law in international commercial arbitration.This chapter separately the methds of ascertain foreign law of the arbitral tribunal and the parties and compared this methds.In addition,this chapter laid special stress on the arbitral tribunal to ascertain the foreign law by the experts and the experts by parties hired.The fourth chapter is the cognizance and effect of “failure to ascertain foreign law” in international commercial arbitration.This chapter analysis of the cognizance of failure to ascertain foreign law from cognizance body and cognizance standards. The effect of failure to ascertain foreign law include apply the most significant relationship principle pointed applicable law, apply the seat of the arbitration’s law, apply to the shall similar laws of foreign law and pply international commercial pratices.The fifth chapter combined with China’s situation and problems of ascertainment of foreign law in international commercial arbitration on the basis of the text on the front,put forward relvent recommendations to improve the ascertainment of foreign law in international commercial arbitration in China.