The Jurisprudential Basis Of International Arbitration

International arbitration is usually considered as a private way of disputesettlement, the foundation of which is usually considered to be partyautonomy, and there is little room for the state to intervene. Then questionscome. Why a private way of dispute settlement can create a legally bindingforce, and even create “laws” beyond the state rules and regulations? What isthe foundation of the legally binding force of the arbitration process? Theseproblems are still under disputes, and those authors in the internationalarbitration areas and in jurisprudence areas have not exchanged their ideaswith each other so far.This article starts with the analysis towards the three kinds ofrepresentations of the legal foundations of international arbitration broughtup by Professor Emmannuel Gaillard. And in the following two chapters, itfocuses on the analysis to the relationship between the individual and thestate, and a single state with the international society (or a single state withother states). In the relationship between the individual and the state, therights of the individual undoubtedly shall take priority. In fact, the creationand existence of a state is to promote the rights of the individual. However,this is in conflict with varies kinds of phenomena in the real world when therights of individual give way to the will of the state. A typical example is theinarbitrability. What is the reason to restrict the individual from choosingarbitration as way of dispute settlement? And things become worse when inthe circumstances of international level. The individual seldom have the chance to participate in the construction of the international arbitrationsystem. States are the subjects of the international relations, and they decidedthe rights of individuals. The traditional analysis of the foundations of theinternational arbitration based on party autonomy is thus cannot explain allthose phenomena of the international arbitration.In the relationship between the individual and the state, this article triesto replace the rights of a single person with a CLLECTIVE individual right,esp. in the creation of the state. Thus, when we talk about the foundation ofinternational arbitration, we should make a distinction between the twocircumstances when we talk about the relationship between a single personwith the state, and the relationship between an abstract individual and thestate.Based on the distinction mentioned above, this article tries to make amodification to the traditional idea upon the relationship between theindividual and the state in international arbitration. The will of the individualshall take priority in most circumstances, while it needs to give way to thewill of the state; and when the individual right is restricted, proper reasonsshould be provided.