The Analysis Of The Relationship Between Amiable Compositeur And International Commercial Custom

The importance of amiable composition and international commercial usagesbecomes increasingly prominent recently in international commercial arbitration. Inrecent years, amiable composition has got the recognition of many countries and alsobeen clearly defined in the international convention and arbitration rules. Internationalcommercial usages have got extensive use by the merchants in international tradesand also become one of the basis for adjudication of disputes in internationalcommercial arbitration. Domestic and foreign academic have less research in therelationship between amiable composition and international commercial usages. Soit’s necessary to research their relationship, which can provide theoretical support forthe correct application of amiable composition.Amiable composition and international commercial usages are apparentlydistinguished. Amiable composition is a resolution of disputes and its nature is onekind of legal system. The nature of international commercial usages is code ofconduct, which has been used to adjudicate disputes in commercial arbitration. Exaequo et bono in amiable composition means the fair outside the law. According to exaequo et bono the arbitrator can exclude the application of law. According to theprinciple of fair and reasonable contained in international commercial usages thearbitrator should adjudicate cases justly which doesn’t involve the choice of law. Insummary, amiable composition and international commercial usages have differentnature.There’s close contact between amiable composition and international commercialusages. The application of international commercial usages in amiable compositionhas great significance in the reparation of amiable composition’s defects. Theapplication of international commercial usages can reduce the difficulty of theapplication of ex aequo et bono and enhance the predictability to the arbitral awardsand enhance the enforcement of the awards. Amiable composition and international commercial usages has compatibility in the pursuit of fairness and justice. Theapplication of international commercial usages in amiable composition also has fullfeasibility.China has not established amiable composition yet. It’s necessary to establishamiable composition in order to safeguard the interests of citizens and promote thedevelopment of arbitration career. In view of the close contact between amiablecomposition and international commercial usages, legislators and scholars should payattention to the application of international commercial usages in amiable composition.The arbitrator should distinguish amiable composition and the application ofinternational commercial usages correctly.