A Study On The Substantive Application Of Law Of Amiable Composition

As an untypical manner of international commercial arbitration,amiable composition has been already accepted by most countries in theworld, such as France, Germ any, Britain and South Korea. Relevantinternational conventions and rules such as The Convention on theSettlement of Investment Disputes between States and Nationals of OtherStates, European Convention on International Commercial Arbitration andUNCITRAL Model Law on International Commercial Arbitration also expresslyadmit it. As a remedy for the disadvantages of legal arbitration, amiablecomposition is the requirement of international commercial arbitrationpractice, the principle of party autonomy, a nd the development ofinternational commercial arbitration. However, restricted by the legaltradition and arbitration culture of our country, our arbitration law onlyadmitted legal arbitration. Domestic scholars studied little aboutamiable composition, and most of those studies are only an introductionof it. Based on the precedent researches of domestic and abroad scholars,this dissertation explores the application of law of amiable composition,through comparative analysis of diffe rent legislations an d practices.Moreover, this dissertation seeks to construct amiable composition in the arbitration legislation of our country.This dissertation is composed of three parts, as foreword, fourchapters and epilogue.Chapter one is an introduction of amiable composition. At thebeginning of the commercial arbitration and the time long after it,amiable composition is the main manner of commercial arbitration.Afterward, with the rise of nationalism and the development of law, legalarbitration holds the leadin g position. However, the internationaleconomic transactions are more and more frequent since the 20 th century,so amiable composition is noticed again by scholars and arbitrators.Admitting amiable composition or being more tolerant to it is now aninternational trend. Based on the afore -mentioned studies about thelegislations and practices, I point out some misunderstandings of somescholars about the definition of amiable composition, and give the newdefinition and characteristics of amiable compositio nChapter two analyzes the application of law of amiable composition.The connotation of ex aequo et bono is the comprehension of arbitraltribunal of it. With the clear authorization of the parties, the arbitraltribunal shall investigate and ascertain t he fact of the case and grantan award in accordance with ex aequo et bono, with reference to contractterms and relevant international trade usages. In the course ofarbitrating, the application of law rules is not an obligation, but thearbitral tribunal does not have the power to decide the procedural lawaccording to ex aequo et bono.Chapter three discusses the disadvantages and restrictions of theapplication of law of amiable composition. Ex aequo et bono is not easyto apply in the process of applic ation, and the outcome of applicationis uncertain. Therefore, I put forward three restriction methods. First,the application of ex aequo et bono cannot violate the mandatory rules and public policies of relevant countries. Second, the qualification ofarbitrators must be clearly regulated. And last, the fundamental arbitralprocedures and principles of arbitration must de observed.Chapter four is about the design of constructing amiable compositionin our country. The establishment of amiable composition is a remedy oflegal arbitration, and the requirement of party autonomy, internationalcommercial practice and the solution of conflicts between differentlegislations. However, our arbitration law does not admit amiablecomposition. CIETAC and regional a rbitration institutions have neverpracticed it. So this dissertation holds it is necessary to introduceamiable composition into our country. Last, I make some researches on someproblems about the establishment of amiable composition in our country.