Party Autonomy And Restrictions Of International Commercial Arbitration Procedures

Procedures of international commercial arbitration is designed to give the freedom of right of the parties to choose the procedural Rules of International commercial Arbitration,get rid of the control of the law of the arbitral seat,enhance the competitiveness of the international commercial arbitration system.Many countries have embodied and respected the autonomy of the parties in the practice of international commercial arbitration.However,our International commercial arbitration does not specify whether the parties have the right to choose the arbitration procedure.But the Civil Procedure Law article 274,the composition of the arbitration tribunal or the procedure,the court will refuse enforcement of award if incompatible with the law of arbitration seat.In other words,the composition of the arbitral tribunal or the procedure of international commercial arbitration should conform to the rules of arbitration,otherwise the arbitral will not be implemented.This is an indirect recognition that the procedures of International commercial arbitration is absolutely applicable to the law of the arbitral seat which is contrary to the trend of development of international commercial arbitration.However,the parties of the international commercial arbitration procedure are not full of autonomy that is to be restricted.The aim is to achieve a minimum level of fairness and real autonomy.So,this article from the procedure of international commercial arbitration of the basic of theory and the aspects of autonomy of parties in which needs to be restricted,combining our international commercial arbitration that analyze defects of arbitration procedure,and puts forward related suggestions.This article is divided into four parts:The first part is the overview of international commercial arbitration procedure system.This part analyzes the concept of international commercial arbitration procedure and clarifies the concept of relevant arbitral procedures so as to extend the legal application of international commercial arbitration procedure.The traditional international commercial arbitration believes that the arbitration procedure should beabsolutely applicable to the law of arbitration.However,with the development of international commercial arbitration,the more and more obvious of liberalization trend,appropriate to the various countries have begun to break through the traditional arbitration procedure of the absolute place for arbitration law restrictions,give the parties choose the autonomy of arbitration procedure.Therefore,in this part,we should also analyze why the arbitration procedure should be changed from the absolute application of the law of arbitra seat to the autonomy of the parties of the arbitration procedure.The second part is the procedures of international commercial arbitration party who have autonomy.This part from the procedures international commercial arbitration of the basic theory of party autonomy,which analyzes the connotation,the origin and development of party autonomy and the value,then,and exploration on the practice of international commercial arbitration procedures,from the international convention,domestic law,arbitration rules of the following three aspects.The third part is the restriction of the autonomy of the parties in the procedures of international commercial arbitration.In my opinion,the international commercial arbitration procedure of the parties are not fully autonomous,and they need to be restricted.So,this part from the parties of autonomy of international commercial arbitration that need limited reason,in which aspects need is restricted.The limit is a combination of the content of the international convention,domestic law,the arbitration rules,on this basis are analyzed in depth.The fourth part is our legislation of procedure commercial arbitration that the parties have autonomy and its perfection.Our International commercial arbitration is not whether the parties can choose arbitration procedures clear rules,but,in practice,our country pursues is territorialism,which is to think,international commercial arbitration procedure of the absolute the law of the arbitral seat shall apply.So,the part of the current situation of legislation on international commercial arbitration in China to analysis,and explains the present situation of its defects,then gave the necessity of party autonomy of arbitration procedure of the in-depth analysis,finally put forward to perfect our procedures of International commercialarbitration of parties who have autonomy and restriction of countermeasures and suggestions as well as to the terms and conditions of the design procedures of international commercial arbitration.