| Denationalized theory of arbitration is mainly about the application of procedure law of arbitration and the substantive law of that,then extends to the validity of arbitration awards.The core contents of the theory is that in the application of arbitration procedure law and substantive law, besides lex loci arbitri, the law which is selected by parties or arbitration courts could be applicable. Especially in the validity of international commercial arbitration awards.That's to say,the theory place emphasis on the autonomy of will in validity,not relying on the recognition and of any country. In the period that international commercial arbitration develops rapidly, the research on this topic is valuable in both theory and practice.Chapter 1 focuses on the formation of denationalized arbitration theory. Since the middle of the 20th,the growing of foreign elements in arbitration,permanent arbitration institution becoming common and the respect to the autonomy of parties,create the practicing basis for denationalized arbitration theory.Special cases in international commercial arbitration also provide important support. On these all,learners from the western countries issue the theory.Different researchers have different expression,but most of them hold the point that denationalized arbitration theory extend the autonomy of parties will and push award the evolution of international commercial arbitration.Chapter 2 describes how denationalized theory of arbitration promotes the development of autonomy of will in international commercial arbitration.Firstly,denationalized theory of arbitration theory has no distinction with the contractual theory on party autonomy.Denationalized theory of arbitration even places less restriction on it,which has matched the tendency of international commercial arbitration.Secondly,denationalized theory of arbitration contradicts the traditional rules for arbitration- the theory in arbitration connects the application of arbitration procedure and the lex loci arbitri,which is widely confirmed in the past.But denationalized theory of arbitration believes the relation between place of arbitration and arbitration procedure is reluctant.so international commercial arbitration can only be controlled by the rules of the countries in which arbitration awards are enforced.Thirdly,denationalized theory of arbitration objects the excessive inference from the courts.That's to say,the less interference,the better arbitration.From the historical view ,the point is in line with the arbitration and the will of parties.At last,the online international commercial arbitration has become challenges to the traditional international commercial arbitration.However,this theory can explain the validity of arbitration awards and place of arbitration.In the view of autonomy of arbitration,Chapter 3 makes theoretical thinking and practicing analysis on the issues related to denationalized theory of arbitration.Although enhancing the popularity of international commercial arbitration,there still exists some basic problems to discuss,such as the sources of arbitration power,the nationality of arbitration awards,the relation between courts and arbitration,which are all important to international commercial arbitration.However,denationalized theory of arbitration has some kind of unclearness on these issues.There is no doubt that the power of arbitration origins from the deletion of the parties.But only emphasizing this point cannot coincide with the working mechanism of modern international commercial arbitration-the interaction of the contractual feature and the judicial feature.Arbitration decisions should have their nationalities.It's hard to find any decision that is born valid in practice.Only with the support of the courts can arbitration goes well. From the practices, some countries, just like France, Belgium's arbitration law has revealed that has been adopted in some extent, but it doesn't mean that the wholly denationalized arbitration.The newly legislation of U.K and U.S.A have accepted the theory in some extent.For example, 1996 Arbitration Law of U.K releases some restriction on the autonomy of parties.In the U.S.A, some cases make use of denationalized theory of arbitration to guard the benefits of the states.U.K and the U.S.A have insisted on the arbitration procedure should be according to lex loci arbitri.Chapter 4 turns to China. 1995 Arbitration Law of China and related documents do not provide how to deal with the denationalized awards and its positions clearly.During pracitces.it seems available according to the provisions of 1958 'New York Convention'.Chinese courts may receive the awards that need to admit and enfore,which includes the denationalized procedure and the resulted dispute on the validity of the awards.Overviewing the nowadays legislation and practice of China,the theory has no opportunity to apply.With the growing of foreign related cases in arbitration,we are likely to encounter the situation other countries apply the theory.This part issues suggestions on how to perfect China's arbitration regime concerning foreign elements and how to promote the development of the autonomy in arbitration. We should not only widen the limitation on the parties self-government,but also accelerate the nongovernmental course of arbitration institutions. In a word,the essay reaches the conclusions:under the tendency of similarity of the global law,the similarity of arbitration procedure law walks faster.The merchants' pursue and struggle for rights has enlighted the roaring development of international commercial arbitration. Although the applicable range and chances of denationalized theory of arbitration are so limited,its emergence enriched the theory and practice of international commercial arbitration. |
