The Introduction And Application Of Amiable Composition

Amiable composition is an independent form of arbitration,which is an important component of international commercial arbitration.Currently,amiable composition has been widely accepted as a basic arbitration form in the world.Chinese Arbitration Law does not expressly admit amiable composition.Domestic scholar has researched on the topic for certain extent.Some basic issues of the amiable composition,including its definition,nature,object,the base of the arbitral awards,the restrictions of the arbitral tribunal and the recognition and enforcement of the arbitral awards,still have no consensus.Shanghai International Economic and Trade Arbitration Commission(SHIAC)issued The China(Shanghai)Pilot Free Trade Zone Arbitration Rules(FTZ Arbitration Rules)on 2015,which is the first arbitration rules containing amiable composition.At the same time,Shanghai Second Intermediate People's Court issued Several Opinions of the Second Intermediate People's Court of Shanghai Municipality on Applying the “Arbitration Rules of the China(Shanghai)Pilot Free Trade Zone”for Judicial Review and Enforcement of Arbitration Cases(Several opinions),regulating that the recognition and enforcement of the arbitral awards made by amiable composition.It still remains as an issue of whether China has erected amiable composition through above regulations and rules.The essay is composed of three parts,introduction,four chapters and conclusion.The first chapter discussed the basic issues of amiable composition.First comes to the origin of amiable composition,form the beginning to the complete system.Then,it comes to the meaning of the amiable composition,form the common law jurisdiction to the civil law jurisdiction.After comparison of the two jurisdictions,author raised his own view on the definition of amiable composition.In common law jurisdiction,scholars prefer to define through the extent of discretion of the arbitral tribunal in the amiable composition.Scholars from civil law jurisdiction which amiable composition origin in took the view of the middle one.Scholars of China also have varied views on amiable composition,which focused on the issue that whether amiable composition can be applied only when the law cannot reach the just results of the dispute and whether amiable composition can only be applied in international commercial arbitration.Author comes to his conclusion that amiable composition can be applied without restriction on the just results comes from application of law.Amiable composition can surely be applied in domestic arbitration.At last,it comes to the advantage of amiable composition which includes the efficiency and just.The second chapter discussed two preconditions of amiable composition,the explicit authorization from the parties and the permission of the law on seat of arbitration.Firstly,all the parties in the dispute should explicitly authorize arbitral tribunal to solve the dispute through amiable composition,which can be reflected on the arbitration agreement.In addition,the authorization should have more rights than other arbitration agreement.It should be authorized that arbitral tribunal may not follow strictly with law rules,and can decide through ex aequoet bono.Then,author discussed the regulations in UNCITRAL Model Law and the law of Germany,French and British.At last,author discussed the results of not following arbitration agreement,including arbitral tribunal decide as ordinary procedure when parties agree on amiable composition and arbitral tribunal decide as amiable composition when parties agree on ordinary arbitration agreement.The third chapter discussed the application of amiable composition.The discretion of the arbitral tribunal in amiable composition cannot be without restrictions,ex aequoet bono,lexmercatoria can all be regarded as reference during the arbitration.The chapter discussed lexmercatoria,including the definition,extent and method of finding principles.Lex mercatoria included general principles that accepted by most merchants,custom,usage of the trade and awards of international commercial arbitration.All these standards and rules are used to restrict the discretion of arbitral tribunal in amiable composition in case the arbitral tribunal can decide the awards at their full subjective willing.The fourth chapter discussed the validity of the introduction of amiable composition.Only Tianjing Arbitration Commision and SHIAC has issued related rules.However,FTZ Arbitration Rules is the only true rules regarding to amiable composition.The other one is more suitable for describing as “friendly arbitration”.Chinese Arbitration Law has not admit amiable composition.Meanwhile,the Legislation Law regulated that arbitration system can only be regulated by Law made by National People's Congress.As a result,the validity of amiable composition in China still remains a question.Author then come up three ways to amend the flaw on the validity of law.