On The Application Of Modern Merchant Law In International Commercial Arbitration

After the Second World War, with the development of international eco nomy and trade,The rise of Lex Mercatoria based on medieval law merchant,Since the fifty’s of the British trade law expert Schmitthoff put forward the Lex Mercatoria, international discussions about the Lex Mercatoria has never been interrupted.Theoretically speaking,The introduction of this concept hasexerted a strong challenge on the trational private international law,which apply the conflict rules to resolve the a pplicable law in international commercial arbitration, makes this topic of application of Lex Mercatoria in the international commercial arbitration heated discussion among scholars.In practical perspective, according to the Lex Mercatoria as the applicable law of International Commercial Arbitration, not only conforms to the interests of the international commercial disputed parties,but also the inherent characteristics with commercial and arbitration agreement, apply to complement each other, and received more and more. This phenomenon also reflects the current international private law began to pay attention to the trend of entity justice.As mentioned above, the law of modern merchants from proposed until now, although only a few decades, but many scholars in the world have A full discussion about application of Lex Mercatoria in the int ernational commercial arbitration. Although the pros and cons of two kind of give tit for tat voice still exist in international society, but in practice Countries are permitted to application of Lex Mercatoria in the international commercial arbitration at the system level, dispute arbitration institutions and international parties are more and more frequently choose the Lex Mercatoria in the applicable law of arbitration, against the theory point of view both in the theory and reality in front is untenable. At present in China, five legal rule is the most important source of modern merchant law- international commercial practices, but other sources of remains of Lex Mercatoria legal recognition. The most important thing is, in a special "Arbitration Law", also did not like most countries in the world like that giving legal status to the Lex Mercatoria. In practice, with the rapid development of China’s international commercial trade, the probability of application of Lex Mercatoria in the arbitration will more and more big, therefore, the problem o f application of Lex Mercatoria in the international commercial arbitration has important theoretical and practical value to our country.From the specific structure of the whole article, is divided into four part s: the first part pointed out the new development of applicable law in International Commercial Arbitration: application of Lex Mercatoria. Firstly, illustrates the drawbacks of the legal application of international commercial arbitration method as to as the traditional conflict rules of indirect adjustment method, and then points out the Lex Mercatoria is applicable to commercial arbitration legal breakthrough, and the Lex Mercatoria meaning, characteristics and origin is introduced simply. The second part describes the theoretical basis of modern merchant law as the law applicable to the international arbitration. First, to international approves of and opposition to the view of classification, on the basis of this, the author through one by one to the op position reason, certainly in favor of theory, namely the theoretically demonstrates the Lex Mercatoria is the inevitable choice of international commercial arbitration. The third part from the practical point of view, respectively introduced on the system status and the practice of arbitration for Lex Mercatoria in international commercial arbitration. First introduced the typical arbitration rules of international and major countries, then introduces the practice of international arbitration and typical c ountries, and select the case details. In the last part, namely the fourth part of the article, pen in China, through the application of Lex Mercatoria in arbitration in our country in the elucidation of actuality and practice circle and system, points out the defect and perfection of Lex Mercatoria in our country exist for foreign-related commercial arbitration advice.