Research On The Theory Of Delocalization In International Commercial Arbitration

"The behavior is controlled by the behavior law " is an ancient legal motto, which is displayed in the traditional international commercial arbitration, namely domestic law of the arbitration-appening place has undisputable authority in determining arbitrator’s qualifications, the composition of arbitration court, the procedure of the arbitration and the substantive law suitable and so on-However, since 60’s in this century, in the theory and practice of the international commercial arbitration, a trend that denies "theory of the seat" has emerged, advocating the unshackling of international commercial arbitration from the law of the seat of arbitration. In China, the law field calls it "Delocalized Arbitration", whose main contents are:the international commercial arbitration may not be constrainted by procedural law of the place of arbitration; the power of arbitration is not endowed by law of the place of arbitration;before the award is enforced, it should not be supervised by any judicial system; no country has the power to make the award nullified. The only way to remedy an award is:admitting it and then enforcing it,or refusing to admit it and enforce it. As a theroretical problem with a strong practical influence, the theory of deocalization has brought about intensive interests and debates in the field of international commercial arbitration and has brought influences on lawmaking and arbitration practice. Although giving more autonomy to the international commercial arbitration is a worldwide trend, the theory of deocalization is not meant to exclude all non-domestic judicial intervention. Whereas, the extent of the court’s intervention in the arbitral proceedings varies greatly, depending on the legislation of the international commercial arbitration in different countries and being related to the court’s the support and level of control to arbitration proceedings. In the discussion in the passage, the author mainly uses the empirical analysis, comparative analysis, legal analysis and case analysis, to analyze the legal basis of the theory of deocalization as well as practice and related cases, so as to prove the rational cores of the theory of delocalization. Furthermore, through the analysis of different arbitratory arrangements and worthwhile lessons of the relationship between the arbitration system and judical supervision, and the analysis of deficiencies in our existing legislation, the author puts forward positive suggestions.This passage consists of 4 chapters. The first chapter defines the meaning of the theory of deocalization. And elaborates specifically the decisive significanc of the place of arbitration in delocalized arbitration in ways of standards for identifying delocalized arbitration and international commercial arbitration award citizenship. The second chapter proves the rationality of the theory in terms of characteristics, nature,value and other aspects of the International Commercial Arbitration。This part also makes a feasible research on delocalization arbitration through analyzing the legislation about arbitration,the international treaties and the classical decisive cases. ChapterⅢof this passage examines the relationship between national sovereignty and the right of arbitration, to prove the delocalized arbitration is not detached from the nature of international commercial arbitration and the domestic jurisdiction of any State. On the basis of explaining the need for judicial supervision of non-national arbitration, this chapter gives specific elaboration on the scope of supervision, the contents of supervision and the distribution of supervisive rights. The fourth chapter emphasizes the impact of the theory of delocalized arbitration on China’s judicial supervision and arbitration system. This part first analyzes the development and current situation of our domestic arbitration system,then put forward specific proposals and preliminary ideas with a view of improving our legal system.