On Application Of Amiable Composition

With a background of internationalization of commercial arbitration, unification and harmonization of law, and the widespread acknowledgement of autonomy principle, the system of amiable composition has gradually been recognized by various countries. Due to the negative disputations such as "completely subjective arbitration" , amiable composition was not developed fully.Once the application of rigorous law rules may lead to an unfair award, the arbitral tribunal or arbitrator may make an award according to ex aequo et bono or equity principles only if the parties have authorized it to do so, and equity provisions would empower arbitrators to disregard the law or established legal rules, and make a valid arbitration award.Amiable composition would guarantee the arbitral tribunal or arbitrator not to be limited by the applicable law of arbitration procedure, master agreement and other terms of this agreement. The amiable composition provisions may be not only part of arbitration agreement, but be also part of the provisions of choice of law. The amiable composituer would make an amiable composition award only if be authorized expressly or acknowledged impliedly. Pursuant to related rules of international commercial arbitration, the making of an award contrary to the authorization of the parties constitutes a ground for refusing recognition and enforcement.The following missions of amiable composituer should be considered particularly. Firstly, an adjustment by amiable composituer may be more necessary between equity principles and legal rules, in order to obtain an fair arbitration award that should be fine with the parties and arbitrators. Secondly, the amiable composituer has obligations to guarantee the arbitration award to be made according to ex aequo et bono, and not be announced null or void by other countries.The power of amiable composituer should be limited by various factors in avoidance of "completely subjective arbitration" . Such as, the basic principles of arbitration procedure all the arbitrators should comply with, the public policy or public orders, the power of application of substantial law criterion, and so on. Otherwise, the notify obligation and defensive procedure is necessary for this issue.Although, the system of amiable composition still shows shortcomings that have not been resolved yet, the system itself of amiable composition should be subject to the tendency of international commercial arbitration, and also the main tendency of internationalization and Liberalization in international trade development is line with the characteristic of amiable composition.