Research On The "Delocalized Theory" Of International Commercial Arbitration

Before the "delocalized theory' was put forward,the arbitration procedure law of the country of the place of arbitration must be followed in which the application of arbitration,the selection of arbitrators and the conduct of arbitration.However,this mode ignores the situation that the country becomes a party to the arbitration case,in this kind of arbitration cases,because of the existence of the principle of "sovereign immunity",the law of the place of arbitration cannot restrain the country as the party of arbitration,in this time,how to apply the arbitration procedure rules becomes a difficult problem.After the "delocalized theory" was put forward,the parties may choose among the laws of other countries,arbitration rule,international law and other procedural rules,the problem that the arbitration procedure rules cannot be determined in those cases is solved.After the development of the "delocalized theory",its connotation of emphasizing the autonomy of the parties' will and excluding the intervention of the judicial system in the place of arbitration has been extended.This theory can not only solve the cases of the state as a party,but also can be applied to all kinds of arbitration cases.Under the guidance of the "delocalized theory",international commercial arbitration can meet the new demand for dispute resolution,which can adapt to the current economic situation well.Finally it has a very large development space in the future.This paper consists of four parts:The first part is an overview of the "delocalized theory".One side,summary the connotation of the theory.Another side,analyse several reasons for promoting the theory.The second part is the practice of the "delocalized theory".The New York Convention,Washington Convention,European Convention,Arbitration Model Law and other international legal documents all support the theory of delocalization.In addition,the attitude about legislation and arbitration judicial practice can also reflect their supports for the "delocalized theory" in France,Switzerland and other countriesThe third part is explaining the rationality and defects of the"delocalized theory".First of all,this paper analyzes the rationality of the theory from the following aspects:the contingency of the choice of arbitration place,the contractual trait of international commercial arbitration,the emphasis on efficiency of international commercial arbitration.Secondly,because it is a new theory,the theory advocates overemphasize the autonomy of the party's will and ignore some problems in the practices.Such as the need for the assistance and superintendence of the court in the place of arbitration in some cases,the limitations of the party's will,and ignore some non local rules which are not suitable as arbitration procedural,thus in face of these problems.Terefore,the "delocalized theory" still has defects in these aspect.The fourth part is the optimization suggestions of the theory and its enlightenment for China.In this part,first of all,in face of the defects of the "delocalized theory",puts forward suggestions for theoretical optimization.Secondly,it analyzes the problems which was caused by the lack of absorption of the "delocalized theory" in China's arbitration system,so as to put forward suggestions to modify China's arbitration system.