Borders of states’ jurisdiction in regard to international commercial arbitration

Abstract

The article is devoted to the problem of binding the arbitral proceedings to the place’s legislation where they are held. This binding, which was justified in the doctrine through the postulates of legal positivism in the first quarter of the 20th century and implemented in the first international treaties related to international commercial arbitration, has now lost its practical significance and creates many difficulties for all participants of arbitration. For many decades, there has been a steady trend towards the separation of international commercial arbitration into a special autonomous legal order, which is expressed both in the doctrinal theory of the delocalization of international commercial arbitration and in the legislation of states pursuing a friendly policy. The author considers some of the problems that arise from the existence of binding the arbitral proceedings to the laws of the place where it is held, conducts a historical and legal analysis of the origin and development of this binding, and analyzes the existing concepts about the nature of international commercial arbitration institution where the need of binding the arbitration to a particular state jurisdiction, or the absence of such a need, are substantiated. Basing on a detailed review of the individual components of the dispute procedure in international commercial arbitration, the existing manifestations of its autonomy, as well as the problems of the institutions for contesting, recognizing and enforcing arbitral awards, the author draws conclusions about the possibility of refusing to bind arbitration proceedings to the jurisdiction of the place where it is held, and also suggests possible ways to implement such a refusal.