Research On Amiable Composition Of International Commercial Arbitration

Amiable composition is a type of commercial arbitration,which is mainly used in the settlement of international commercial disputes.It is characterized that the arbitral tribunal’s right not to apply or even violate the legal rules(the rules of law)in order to realize the fair and just award result in the case,and the corresponding to amiable composition is arbitration according to law.From the legislative situation of most countries in the today world,amiable composition is only an exceptional arrangement,and in principle should be arbitrated according to law,that is,the arbitral tribunal must adjudicate cases according to the rules of law,unless the disputing parties authorize their consent otherwise,the arbitral tribunal may arbitrate amicably.But historically,amiable composition is the main form of arbitration.After the dispute,the parties jointly seek a respectable third party to make a judgment.The parties do not care whether the arbiter,in accordance with the legal rules,submits the dispute to a credible arbitrator for a quick and effective fair award,which is the real reason why the parties jointly choose arbitration.Under article 28 of the 1985 United Nations Commission on International Trade Law Model Law on International Commercial Arbitration(hereinafter referred to as the Model Law),an arbitral tribunal may,with the consent of the parties,decide as a friendly arbiter(amiable compositeur)or on the basis of the principle of fairness and goodness(ex aequo et bono)of law.This provided for amiable composition of international commercial arbitration from the perspective of the Model Law,resulting in the addition of amiable composition clauses amiable composition clauses to subsequent legal or arbitration rules revisions.However,as early as 1922,the Arbitration Rules of the Court of Arbitration of the International Chamber of Commerce had provided for a friendly adjudicator system.In fact,amiable composition has a long history.During the Roman era,the arbitrators ruled on the basis of the principle of fair kindness(ex bono et aequo),and the medieval merchant court set up by Mediterranean businessmen to resolve trade disputes quickly also regarded the principle of fair kindness as the standard of adjudication.Nowadays,the laws of most countries in the world explicitly stipulate that the parties may conduct friendly arbitration,and even some countries stipulate that the arbitral tribunal should conduct amiable composition in the absence of a special agreement between the parties.China’s Taiwan region calls amiable composition equitable arbitration.Although many countries or regions provided for a system of friendly arbitration,there had been a different understanding of what amiable composition was,the competence,scope,etc.,of the arbitral tribunal entrusted with the task of friendly arbitration,for which the Model Law deliberately avoided defining friendly arbitration.China’s Arbitration Law stipulates that arbitration shall be “in accordance with the law”,Therefore,it is generally believed that our law only stipulates the arbitration system according to law.Whether international or domestic disputes,the arbitral tribunal must rule on the dispute in accordance with certain legal provisions.On 8 April2014,The Shanghai International Arbitration Center promulgated the Arbitration Rules for China(Shanghai)Free Trade Test Zone,Article 56,“Award of amiable composition”,It is considered to be the first arbitration institution in Chinese mainland to introduce amiable composition system into arbitration rules.On May 4,2014,“the Second Intermediate People ’s Court of Shanghai Issued Opinions On Judicial Examination and Enforcement ‘Arbitration Rules of China(Shanghai)Free Trade Test Area’”,It shows that the local courts of our country support the judicial attitude of amiable composition to a certain extent.Thereafter,The Beijing Arbitration Commission,the Guangzhou Arbitration Commission,the Shanghai Arbitration Commission,the Nanjing Arbitration Commission,the Changsha Arbitration Commission and the Yinchuan Arbitration Commission have successively added amiable composition clauses to the revision of arbitration rules.But so far,There have been no amiable composition cases in the mainland,This shows that the arbitration practice is lack of understanding of friendly arbitration,The parties or lawyers are not clear about the difference between amiable composition and legal arbitration and the unique value of friendly arbitration.The Model Law determines whether the arbitration tribunal decides based on the the rules of law rules,and distinguishes international commercial arbitration into amiable composition and legal arbitration.There is not a clear distinction between amiable composition and legal arbitration,and there is a dialectical and unified relationship between the two.In different cases,the result of amiable composition and legal arbitration may be exactly the same,but it may also be completely opposite.Although amiable composition is different from arbitration according to law in the application of formal logic syllogism,amiable composition can better reflect the essence of commercial arbitration,while paying attention to maintaining the commercial relations between the two parties.Avoid too cumber some foreign law verification and application procedures,effectively improve the efficiency of arbitration awards.The adage “the quality of arbitration depends on the arbitrators” shows that whether it is amiable composition or legal arbitration,the vitality of arbitration lies in the credibility of arbitrators.From the perspective of economics,businessmen who choose different dispute settlement methods will produce different economic benefits and ultimately determine the different quality and level of economic operation.When businessmen decide which way to solve disputes,they always choose the relief methods they think are the most appropriate,so as to maximize their own interests.This process,embodies the rational choice of businessmen as “rational people”.In the view of economists,all dispute solutions are costly,and the costs and benefits of rational solutions are considered.The cost-benefit theory of economics emphasizes the maximum benefit at the minimum cost.By comparing and weighing the different resource allocation schemes,we find the schemes that can maximize the needs to be met with the minimum resource consumption.The primary value of commercial arbitration is the benefits,which are mainly reflected in the efficiency of dispute settlement,unnecessary costs,procedural fairness,etc.Rapid resolution of disputes is conducive to cost saving and improving efficiency,which is also an important reason why businessmen have always favored international commercial arbitration and avoid national court litigation.But now,the procedure of international commercial arbitration is increasingly cumbersome,the arbitration tribunal needs to study and apply more and more legal rules,compared with the court litigation,the quick characteristics of international commercial arbitration is no longer obvious,even excessive judicial phenomenon,how to improve the efficiency of international commercial arbitration,has been a hot and difficult discussion in the arbitration community,and amiable composition provides the possibility.The arbitration tribunal holding the task of amiable composition is not subject to the strict application of laws and rules,and making the arbitration return to its origin,that is,the parties,out of trust and respect for the arbitration tribunal,reduce unnecessary costs and time input,so as to meet the commercial needs of the parties.In the construction of China’s amiable composition system,it is necessary to avoid confusion between the principle of fairness and kindness and the principle of abstract equity.amiable composition is not to authorize the arbitral tribunal to directly apply the“principle of fairness” and “principle of good faith” of our Civil Code to make decisions.It would be confusing to equate arbitrators directly with the principle of fairness and kindness with the principle of fairness and good faith.The principle of fairness and good faith are the basic principles of civil law and can be applied without the authorization of the parties.In most national legislation,the application of the principle of fairness and kindness must be specially authorized by the parties.Especially,the application of abstract equity principle is still in the category of “according to law”,and the application of fair and kind principle is directly reflected as the expression of “illegal”,so the special authorization of the parties is needed.Because this kind of ruling method is “illegal” in form but in essence is to better realize the fair result of the case,therefore,as long as the ruling behavior does not harm the social and public interests of our country,there is no need to deny it in our law.amiable composition is not only the special power of the arbitration tribunal,but also the ruling task that the arbitration tribunal needs to take seriously.All this depends entirely on the approval and authorization of the parties to this form of arbitration,and is also the greatest embodiment of the principle of party autonomy.