The Applicable Mechanism Of Non-state Law In The Settlement Of International Civil And Commercial Disputes

The construction,maintenance and protection of the new international civil and commercial affairs order depends on a complete international legal system of civil and commercial affairs with a complete system.The role played by private international law is both the core and the most basic.It provides the most basic legal system for the construction of a new international civil and commercial order.Within the scope of private international law,the research object of this article,non-state law,is increasingly showing its importance.Even though they have never been guaranteed to enforce according to the coercive power of sovereign states,with the proliferation of cross-border trade,these norms have become increasingly popular not only in the field of arbitration,but also appear more frequently in court decisions,which shows their practical significance.In previous studies,most studies focused on natural law,customary law,or lex mercatoria.However,the connotation of non-state law is now sufficient to include the above concepts,which can be studied uniformly and classified scientifically.At the same time,we should be aware that the discussion of the legal nature of non-state laws is interesting and speculative,but in the final analysis,it is just because of the different genres,each with its own emphasis and its own limitations.From the perspective of legal realism,the operating path of its application mechanism should be the most important thing in related research.Along with years of practice,the application of non-state law has gradually explored its own laws,and a set of mechanisms has been formed in repeated and repeated practice.This article changes the perspective.On the one hand,it must follow the tradition of its predecessors,and make a more detailed and in-depth discussion of the nature and functions of non-state law.Classification,selecting different samples,trying to summarize the unified application mechanism of non-state law,and on this basis,proposed improved methods.It can be known from research that non-state law is a traditional and novel compound field,and its application methods can be divided into large categories: merger-type application,reference-type application and gain-type application.The first type of the application of non state law is incorporation.This type of application is common in international commercial contract disputes.The first reason is that the international rules applicable to international commercial contract disputes are relatively authoritative and relatively stable.The second reason is that the relevant rules have a long history of application,have formed habits,and have a high degree of acceptance.Although,in the current situation,whether it is necessary to find it as the applicable law of the contract,or only treat it in terms of contract,remains to be further explored.However,in the final analysis,the above two forms are the choices made by the parties during the selection phase of the law,and they have the same application results.Simultaneously,this method of application is not only in the current law selection stage,but also in the stage of recognition and enforcement,which is mainly reflected in the recognition and enforcement of arbitral awards applying non-national law by the court;Nor is it limited to substantive non-state law.In the context of international commercial arbitration,procedural rules are also an important option that can be incorporated and applied.Therefore,the application of non-state law in international civil litigation does not only refer to the form of incorporation of contract terms,but should be understood as "the process of dispute resolution in case of incorporation".The second type of the application of non-state law is the reference type.The reference application and incorporation application of non-state law fully reflect the dynamic relationship between state law and non-state law,but they are different from each other in the specific path of application.The incorporation and application of non-state law can be compared with the narrow sense of "application of law",however,the reference to law and the narrow sense of "application" are two different situations.Generally speaking,the reference application of non-state law is auxiliary.For example,in an international civil and commercial dispute,the applicable law refers to the civil law of a certain country,but because the business carried out between the parties has the nature of industry,it is necessary to judge the rights and obligations of the parties from a professional perspective.At this time,only relying on the applicable law can not get the results directly,and it needs to be judged by the relevant provisions such as industry standards.In this case,the non-state law that has been used is a kind of application in the reference dimension.F From a practical point of view,the application of non-state law is relatively rare in the stage of contract selection,but the application form which takes it as a reference is more prominent.As early as in the legislative link,non-state law can be used as a kind of model law to produce reference value for national legislation.After entering into the settlement of civil and commercial disputes,when other laws are applied to the contract as the applicable law,but this law is not enough to judge the issues involved in the contract disputes,the courts or arbitration institutions can regard the non-state law as a reference tool to measure the rights and obligations of the parties.In short,the reference application of non-state law is a kind of measurement,judgment and supervision.The third type of applicable non-state law is the gain type.As a form of reasoning or supplement,gain type is often used for explanation and explanation after citation.Compared with the incorporation type and reference type,it is not so specific,but more as a supplement.It is either a supplement to our own views or a supplement to the problem of legislative blank.In terms of procedure,the parties can have more participation and leadership;in terms of substance,there are effective rules to solve special international problems.This is a sign of the progress of legal thought and the sound legal system.With the maturity of international civil and commercial dispute settlement mechanism,more and more non-state laws are valued by the parties.It can be clearly seen that there are more and more cases in which the parties at home and abroad use non-state law to support their own position in the debate process,and most of the national legislation and international legislation have confirmed this application mode.In the meantime,there are some areas,such as the lost art return area,which do not have technical or professional characteristics,but also due to certain historical or practical reasons,forming exclusive rules.This is because in the context of the community of human destiny,in the face of international civil and commercial dispute settlement,it is no longer limited to the old narrow concept.People have formed a fusion of values,and began to have a unified assessment of many transnational disputes.These three ways of application of non-state law show the trend of gradual expansion of its scope of application and gradual deepening of its degree of application,which has a lot to do with the flexibility and specificity of non-state law itself.These are their distinguishing features.Moreover,the legislation in the world today is different from the traditional legislation,and there will be no strict distinction between the common law system and the civil law system.Many non-state rules are formulated on the basis of the legislative experience of the contract law of the two legal systems.This combination can effectively promote the unification of the rules of sale and is more conducive to the healthy development of international trade.On the other hand,in the process of formulating non-state laws,different interests and requirements of developed countries and developing countries are considered respectively,which improves the participation of each country.So that the less developed countries also have a certain voice,greatly reducing the obstacles of international civil and commercial exchanges,and providing a legal basis for solving international civil and commercial disputes.Both in international civil litigation and international commercial arbitration,the incorporation of non-state law has been promoted.Therefore,the study of specific application mechanism should be summarized.On the basis of multi-level specific research,it can be seen that the subject of application of Non-state Law has expanded from the referee to the dispute participant,the reason of application has expanded from meeting the expectation of autonomy to filling in the legislative gap,and the way of application has changed from unorganized law to effective combination with national legislation.These changes not only reflect the gradual development of non-state law itself,but also are the subject of more mature dispute resolution procedures Will.On this basis,the applicable mechanism of Non-state Law in practice can also be summed up: for international practice,it should be applied and used as a basis for judgment;for industry rules,it can be applied at the level of supervision and measurement,but it is necessary to fully understand the facts of the case and make careful decisions based on the analysis of the specific content of the relevant rules;for the application of religious law in non religious countries,we should give more consideration to the protection of the rights and interests of the weak and the protection of human rights;for other folk customs,we should determine whether there is any relevant legislation,which can be properly referred to on the basis of legislative gaps and not violating the mandatory provisions and public policies.All in all,there is no specific regulation on the application of non-state law at present,and whether to use or not is still a matter of preference.However,whether it is personal preferences or national preferences,to make it more scientific and reasonable to play its role,or on the basis of a country's private international law legislation,we should formulate a relatively definite way to guide the application of non-state law.In legislation,we should define its definition and classification standard;in judicature,we should apply it as much as possible;in recognition and enforcement of judgments,we should give more guarantees to those non-state laws.And meanwhile,we should attach importance to their transformation and legislative participation.