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国际商事仲裁的法律适用概览(英文)

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   National law: is most commonly used in practice for applicable law and is often “neutral” .
   Public international law: Where the parties of commercial contract are states or state entities, e.g. Channel Tunnel project , the legal framework was an international treaty.
   Concurrent laws: That where one part of the contract is a state or state entity, the state’s law is recognized and the principles of international law is introduced at the same time is adopted by the Washington Convention.
   Combined laws: That is to choose the common parts of both parties’ national laws, perfectly practiced in Channel Tunnel project.
   The Shari’ah: Where the parties are all Muslim, the Shari’ah law will be automatically the governing law.
   Trans-national law: It includes the general principle of law, international development law, the lex mercatoria, codified terms and practices and trade usages.
   Equity and good conscience: It is effective when parties agree and the applicable law permits.
  Although the parties have the right to choose the applicable law, ignoring the choice of law occasionally exists in the contractual activities. If the parties have not expressed that choice, the arbitration tribunal may then have a task to establish the applicable law by means of inferring such a tacit choice that is “demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case”. If neither express nor tacit choice exists, that task must follow the conflict of law rules. Since the conflict rules are different from country to country, international conventions or rules leave the choice to the arbitrators who have right to apply the conflict rules what they deem or consider applicable. 
  5.The law governing the recognition and enforcement of the award
  It is understandable that the ultimate aim of the parties to arbitrate is, bringing it in a national court (or courts), to seek the enforcement of the award made by a legitimate arbitration, in case of absence of voluntary carrying out. Parties may take account of the issues of recognition and enforcement before they conclude the arbitration agreement. Both the potential claimants may think of these questions: If I win, where are the opposing party’s assets located? Will the award of arbitration be enforced in that place?


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