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6. Conclusion
Since there exist different legal systems in this world, even in one country, there may be co-existed different law systems. Unlike litigation, which is based on single national law system, and even if the foreign law involved, the court would follow the choice or follow the national conflict rules to determine applicable law, the ICA raises more complex legal issues beyond any given national law. Many jurisdictions provide the arbitral tribunals more freedom to determine the applicable law than the national courts when parties give up their choice of law.
Concerning the parties of ICA, once they have decided to submit their disputes to arbitration, one thing should be borne in mind that they have the freedom to choose different laws to govern the arbitral agreement, the arbitral procedure, or the subject matters of disputes, and they also have the freedom to choose any suitable place for arbitration. But they could not abuse their rights because not every choice is acceptable or practicable in all legal systems involved. ICA is sometimes expensive and the choice of law is time consuming. No party likes wasting money, and no winner likes an award being refused in the course of enforcement. Simultaneously, to decide an arbitration to be held in state A, choose arbitration law of state B, use state C’s national law to govern arbitration agreement, and invoke state D’s law to govern the substantive matters, this is just a theoretical possibility. This might only occur in the time that the parties have to do so. While there is no a universal rule for precise choice, parties should make a scrutiny to the applicable laws before they make their choices.
Concerning the arbitration tribunals, the seat theory has resolved the question what procedure should be followed but when the parties gave up the choice of proper law expressly, another question, how to determine the proper law, remained unsolved. Some systems may still insist that the arbitration tribunal should follow the conflict rules of the seat of arbitration. Some system may have abandoned these two-steps approach and confer the arbitration tribunal to determine the proper law.
Concerning the national laws and the trans-national laws, it is difficult to say which law is good law. The problems fall into the hand of parties. They are in the best situation to make their own choice. I would say that the applicable law should be certain, competent to resolve dispute, accessible, and practicable. The choice should not establish any barriers to the recognition and enforcement of arbitral award. Any uncertain rules of law seem like causing risk of refusal of enforcement of awards.
【参考文献】Bibliography: Books: Collins, Dictionary of Law, the second edition. (2001) Fraser P Davidson, Arbitration, (2000) Jilin Press: Collection of Laws of the People''s Republic of China (2001) Alan Redfern & Martin Hunter, Law and Practice of International Commercial Arbitration, 3rd edition, (London: Sweet & Maxwell, 1999) Legislatures: - Age of Legal Capacity (Scotland) Act 1991 - Amman Convention 1978 - Arrangement for recognition and enforcement of awards made in Hong Kong or Mainland China, 21 June 1999 - Arbitration Law of the People''s Republic of China - Civil Procedure Law of the People''s Republic of China - Contract Law of the People’s Republic of China (adopted at the Second Session of the Ninth National People’s Congress on March 15, 1999) - English Arbitration Act 1996 - European Convention 1961 - Geneva Protocol 1923 - Geneva Convention 1927 - Law of the PRC on Chinese-Foreign Equity Joint Ventures 2000 - Moscow Convention 1972 - Swedish Arbitration Act of 1999 (SFS 1999: 116), enter into force on 1 April 1999 - Swiss PIL Act 1987 - Rome Convention - UNCITRAL Model Law On International Commercial Arbitration 1985 - Washington Convention 1965 Arbitral Rules: ICC Arbitration Rules UNCITRAL Arbitration Rules Articles: - Berger, ‘The New Law Merchant’ (2000) 4 International Arbitration Review 91 - Fortier, ‘The New, New Lex Mercatoria’ (2001) 17 Arbitration International 121 - Reymond,
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