Research On General Principles Of Law In International Commercial Law

This paper is about the problems of the noumena of general principles of law and its application in international commercial law. For any legal system, the study on the source of laws always bears great significance. In particular, for the international commercial law which developed from middle 20th century and is under continuous perfection, the study on the source helps greatly with the understanding of the characters and system of the international commercial law. This paper is thus purposed to study the general principles of law, one of the significant source of international commercial law. Actually, the general principles of law under international commercial law derive from the same definition under public international law, which are a sort of traditional legal source of public international law. However, the meaning and value of the former shall be interpreted under the general background of the prosperous development of international commercial law.Historically, general principles of law are one of the sources of international law expressly set out by Article 38 of Statute of the International Court of Justice, and also one of the important sources of international commercial law. Different from the embarrassment faced by general principles of law under public international law, it is easier to get consensus under international commercial law due to the latter’s private-law feature and unification, and has actually been put into wide application, showing the new vitality. From a legal philosophy aspect, no legal system could cover all issues and legal loopholes are unavoidable. In this consideration, general principles of law become a necessary source of international commercial law, mainly used to remedy the legal loopholes and provide a supplementary interpretation to the contracts. In the international commercial arbitration practices, general principles of law have been invoked in many cases by the international arbitral tribunals as the governing law or reference to legal interpretation. All of the above reveal the significance and importance of general principles of law in international commercial law. However, due to the abstractness and ambiguity of general principles of law, disputes have arisen among the scholars concerning the meaning and characters of general principles of law and the justice of the application has been questioned. These disputes and questions are of great theory value for the understanding of the character of general principles of law and its significance for the international commercial law.Given all the above, this paper, divided into five chapters, studies chapter by chapter the general legal principles’status under and significance for the source of international commercial law and the relevant application in the international commercial arbitration practice, and try to discuss the difficulty faced by general legal principles and the possible way out.Chapter I refers to "the jurisprudential basis of general principles of law". Before the detailed study of general principles of law, it is inevitable to study the super ordinate concept, that is, legal principles. Actually, general principles of law are in nature a sort of legal principle. Therefore, this chapter first deals with the basic theory of legal principle, by reviewing the meaning and function of legal principle and studying the judicial application, in order to set up the jurisprudential basis and ground for the later study of general legal principles. After combing through the basic issues of legal principles, this chapter reviews the background why the general principles of law were embodied into Statute of the International Court of Justice and different theories about the meaning among scholars. This chapter then proceeds to clarify the meaning of general principles of law from a judicial aspect and studies the status and value of general principles law in the context of the source of international law. Based on the above analysis, this chapter finally concludes the detailed composition of general principles of law, whether it’s an issue in domestic law or international law. Actually, it’s a basic question long-disputed among the scholars and definitely can not be ignored by this paper. The analysis of these questions will help with the understanding of the theory in relation to the general principles of law discussed in the following chapters.Chapter II discusses "the meaning of general principle of law in the context of international commercial law". This chapter, based upon the meaning of the general principles of law introduced in the first chapter (the detailed composition), furthers the study on the general legal principle in the context of international commercial law. The international commercial law is a legal system developed as required by the international commercial society under the general background of economic globalization and thus is full of disputes and questions as a newly-developed legal system. Before the paper takes to study the general principles of law’s status under and significance for the source of international commercial law, it is necessary to specify the definition and characteristics of international commercial law. Therefore, the first section of this chapter introduces the definition and characteristics of international commercial law and the rest discusses the general principles’status under and significance for the international commercial law from two aspects, i.e. the source of international commercial law and the theory of international commercial arbitration. Then, it is concluded in this chapter that general principles of law are the important source of international commercial law as well as the main governing law in the international arbitration practices. The third section goes further on researching on how the general principles are embodied in the domestic laws and internal legal documentations. In fact, both the domestic laws and international legal documentations are the legal basis for the study on the application of general principles of law.ChapterⅢexplores "the details of the general principles of law under international commercial law". After the second chapter’s combing through the general principles of law’s status under and significance for the source of international commercial law, this chapter goes further on the details of the general principles of law under international commercial law. Besides, due to the difference in nature between the international commercial law and pubic international law, the details of the general principles of law in the international commercial law differ from that under the public international law. After reviewing the practices of international commercial arbitration, the second section of this chapter then specifies several of the significant general principles of law in the international commercial law. These principles will help with the understanding of the particularity and meaning of general principles of law under international commercial law. This paper is not purposed and it is unlikely for this paper to summarize all the general legal principles, therefore, this paper only sets out the representative legal principles and clarifies the characteristics and meaning of the general principles of law accordingly.Chapter IV deliberates "the application of general principles of law in the international arbitration tribunals". As one of the significant sources of international commercial law, the general principles of law have been repeatedly invoked by the international arbitral tribunals. These cases make it clear that the general principles of law are a sort of true and actual law rather than an abstract and unclear concept as considered by some scholars. The first section of this chapter discusses the theory regarding the application of general principles of law, that is, under which circumstance the general principles of law may be applied, how and in which way the general principles of law are invoked by the international commercial arbitral tribunals, and what the limitation and scope are in the application. The second section of this chapter mainly conducts an empirical analysis on the application of general principles of law in the International Court of Arbitration of International Chamber of Commerce (ICC), including a brief review of the cases in ICC and analysis of the representative cases, in order of get a definite and direct understanding of application of the general principle of law in international commercial arbitration and respond to the general principles of law’s status under and significance for the international commercial law discussed in previous sections and chapters.Chapter presents "the difficulty faced by the general principles of law under international commercial law and the way out". According to the above discussion on the theory and the analysis of the application of general principles of law, it can be seen that general principles of law on the one hand, as a necessary source of international commercial law, play a significant role in remedying the loopholes of international commercial law and resolving the newly arising international commercial law issues as well as in the international commercial arbitration. However, the abstractness and ambiguity of the general principles of law inevitably result in the disputes over the application and thus get the general principles of law into a difficulty. The difficulty is in nature the conflicts between the invariability and justice, the rigidity and flexibility of laws. In the field of international commercial law, the Principles of International Commercial Contracts ("PICC"), since its formation, has been invoked repeatedly by international commercial arbitral tribunals as general legal principles. In fact, PICC’s preamble provides that it may be applied as general principles. Considering the authority, broad participation and wide acceptation of PICC in the world, the writer discuses in this chapter the relationship and impact between PICC and general principles of law in order to find a way out of the difficulty faced by the general principles of law and give a prospect of general legal principles’ development.