Research On The Legal Issues Of Amiable Composition In China

Among arbitration classifications, there is one that is based on legal grounds, ie, categorization between arbitration in law and amiable arbitration. Amiable arbitration indicates arbitrators decide the case before them according to good faith instead of law rules. Most countries and districts in this globe have adopted amiable composition in their statutes, treaties to which they are parties, and their arbitration rules. Amiable arbitration originated from France, which has civil law traditions. Soon, it was accepted by other civil law countries. England, which is a representative of common law countries, finally accepted it when amending her Arbitration Law in 1996, though her attitude to it once altered. Among international legal documents, the European Convention, the Washington Convention, UNCITRAL Model Law on international commercial arbitration, ICC Arbitration Rules, etc., all have provisions on amiable arbitration.Our Arbitration Law has evaded amiable arbitration intentionally because of our country’s special circumstances and worry about its inherent defects, therefore, arbitration statutes, judicial interpretations from the Supreme people’s court, and arbitration rules remain silent about it. ‘Tianjing Arbitration Commission Provisional Rules of Amiable composition’in 2005 was just an arbitration rule of mediation friendly but not an arbitration rule of amiable composition. Amiable composition first appears on Chinese arbitration agency arbitration rules for parties to choose until the promulgation of‘China(Shanghai) Pilot Free Trade Zone Arbitration Rules’ in 2014.Amiable composition has its regime advantages: arrange to decide the case ex aequo et bono to embody the principle of autonomy. The thinking of controversy solving meets the needs of the development of commercial arbitration practice and makes up for the lack of arbitration in law as well as law rules to some extent. Though there are some debates about amiable composition in the details, international trends on that is affirmative, so our country should include it into the arbitration system based on its reasonable terms. Drawing on international mature experience, we should set applicable conditions when designing the regime: express authorization from the two parties before the decision of arbitration has been made. The application of amiable composition can’t violate the mandatory provisions and public policy, and can’t impede the application of procedural rules shall be watched out. When taking account of fair, we shall consider contract terms and law merchant, and watch out the compatible with good faith and law rules. Judicial cancellation of amiable arbitration can assure that the requirements of its application have been strictly observed.