A Study On Legal Problem Of Submitting Disputes Without Foreign Elements To Foreign Arbitration Institutions

International commercial arbitration,as a dominant method of settling disputes of international commerce,has a feature of highly autonomous.However,provisions of some states' domestic law have imposed restrictions on parties' freedom to select arbitration institutions,which prohibits their nationals to arbitrate their domestic disputes abroad.As consequence,the arbitral awards which deal with pure domestic disputes would be refused to enforce even they are rendered in another country.Such restrictions may have not only flagrantly intervened parties' autonomy,but also violated international obligations under the New York Convention.This article will demonstrate two cases recently happened in our country.They have shown different ways of prohibiting submitting domestic disputes to foreign arbitration institutions according to different stages of arbitration proceedings.It also illustrates a typical case Ensco Offshore v.Titan Marine,which shows how U.S.courts handle with these cases.Then the article discusses the possible problems of these judgments mentioned above.On the one hand,it will be discussed from the perspective of domestic law that how to define the “foreign-related” feature of a present case.Some suggestions will be made to provisions in our domestic law,in order to avoid situations that some disputes with real foreign element but formally domestic are deemed to be included in the scope of “not allowed to arbitrate abroad”.On the other hand,the article will develop from the view of international law that how to understand the scope of the New York Convention and the grounds for refusing recognition and enforcement of foreign arbitral awards,in order to figure out whether foreign awards with pure domestic disputes could be recognized and enforced in the court of contracting states under the New York Convention.Finally,the proportionality of the state's intervention to the parties' autonomy will be tested by using the principle of proportionality in the field of administrative law.