国际商事仲裁的法律适用(英文)
孙文杰
【关键词】APPLICABLE LAW, ARVITRATION
【全文】
Aspects of Applicable Laws in the International Commercial Arbitration
Introduction
International commercial arbitration (ICA ) is one way, chosen privately by the parties who have entered into an international 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. In the international commercial transactions, parties come from different territories with different traditions, cultures and legal or political backgrounds. They settle issues through negotiation and ultimately put the results into a contract. The contract is regarded as their own law created not only for setting down each party’s obligations but also for designing a means of dispute solution. From the party’s perspective, they prefer trusting their contract to trusting other laws. Is this meant the ICA should preclude any law? The answer is ‘no’. It is usually the case, one party’s behaviour was alleged breaking the contract, but this party said that he had to do so because he believed his opponent broke the contract first. Dispute occurred and the arbitrator(s) was invited. Then, who was a competent arbitrator? He should be a person authorised by a law. What the arbitrator(s) should do? He should follow a procedure permitted by a law. How could an arbitrator interpret the term of contract legitimately? He may invoke a law as standard. How may an award be valid and enforceable? The answer again should come from a law. Obviously, the ICA cannot be operated in a law vacuum. Conversely, 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 according 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? As a law student, it is impossible to outline so much different legal systems to give a full comparative analysis, so, if necessary, I will just invoke Chinese arbitration law to help the discussion, because it is familiar to me.
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 usually be a corporation. The Model Law illustrates a list of ‘international commercial transactions’ , in which activities involved into IAC was introduced, even if they are not limited to the list. Many jurisdictions admit the term ‘commercial’ should be given an interpretation wider than the list of Model Law. 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 transactions, thus we can determine the parties’ arbitral capacity by means of determining whether a party has the ability to effect an international commercial transaction or whether a party has capacity to sign thus an agreement. Here, questions would like to be asked. Who are competent to enter into an international commercial agreement? The answer may be referred to the national contract law. This would cause complex problems because the contract laws are different from state to state. To determine the applicable law dealing with capacity could not reach a universal rule. It has to be taken account of the individual matter involved into individual contracts.
