国际商事仲裁的法律适用概览(英文)
wenjie sun
【全文】
An Overview: Aspects Of Applicable Laws In The International
Commercial Arbitration
By
Wenjie Sun
Introduction
International commercial arbitration (ICA ) is one way, chosen privately by the parties who have entered into a commercial transaction in which the disputes have occurred or may occur, to resolve the disputes. Being a private option, the arbitration, compared with the litigation, looks like a more amiable, negotiable and flexible method, but its proceeding is not operated in a law vacuum, its application of law is more complicated than litigation.
This essay attempts generally to introduce five different law systems involved in the whole process of ICA by means of dividing the arbitral process into five sections in order to accord with the analysis of the five different laws. The following will give an overview of these five law systems, which can be regarded as the answer to the question: What law governs the parties’ capacity to enter into the arbitration agreement, the arbitration agreement and the performance of that agreement, the existence and proceedings of the arbitration tribunal, the substantive issues in dispute and the recognition and enforcement of the award?
1.The law governing the capacity
The capacity means the ability of a person to effect a legal transaction . The person here can be a natural or juristic person. In the context of the ICA, the latter would be a corporation. Since the arbitration is a method used to resolve disputes that have arisen or may arise in a legal transaction and the ICA deals with the international commercial transaction, thus we can determine the parties’ arbitral capacity by means of determining if the parties have the ability to effect an international commercial transaction. By invoking the Model Law , we can get a scope of the international commercial transactions even if they are not limited to it. This scope helps us to know what kind of international commercial transactions can be arbitrable. Here, questions would like to be asked. Who are competent to refer the disputes to arbitrate? Are there some laws to govern the capacity of them? The answers can helpfully borrow a term from the New York Convention 1958, which touches upon this issue with no more than a single word--“applicable”--than the similar statement in Article 34(2)(a)(i) of Model Law. When dealing with setting an award aside, Article V.1. (a) of the NY Convention, inter alia, states,
