Study On Soft Law Phenomenon Employed In The Rules Of Evidence In International Commercial Arbitration

The rules of evidence always play a significant role in taking of evidence and the admissibility of evidence.It is an effective tool for arbitral tribunals to find the facts and judge the cases,which has significant impact on the decisions of cases.So the effective application of evidentiary rules is necessary.In the community of international commercial arbitration,the rules of evidence play a dominant part in fact-finding and the fairness of arbitral decisions.Even if the features of international commercial arbitration impose the limitations on specific and strict rules of evidence,arbitration laws from different jurisdictions have not established feasible rules of evidence in international commercial arbitration,even rules on evidentiary issues.And arbitration rules from a wide range of arbitral institutions also have not made clear rules of evidence.In recent years,several soft law instruments relating to the rules of evidence have been emerging,such as,IB A Rules on the Taking of Evidence in International Arbitration in 2010 issued by International Bar Association and UNCITRAL Notes on Organizing the Arbitral Proceedings published by United Nations Commission on International Trade Law,etc.However,whether soft law instruments relating to the rules of evidence have filled a gap in international commercial arbitration is at the center of our attention.In this paper,according to soft law instruments relating to the rules of evidence in international commercial arbitration,the author will explain why soft law on evidentiary rules can be applicable in the case and examine the legal binding effect of soft law on evidentiary rules in international commercial arbitration.Finally,the author will give some suggestions on the establishment of soft law on the rules of evidence in international commercial arbitration in China.This paper is divided into five chapters,and the specific contents are summarized as follows:The first chapter is a basic introduction on the soft law instruments relating to the rules of evidence in international commercial arbitration.The author introduces some basic concepts,such as evidence,rules of evidence and soft law in the community of international commercial arbitration.Combined with the concepts and features of soft law,the author concludes that existing instruments on the rules of evidence are within the scope of soft law,which leads to the emergency of soft law on evidentiary rules in international commercial arbitration.The second chapter deeply concludes the reasons for soft law of rules of evidence in international commercial arbitration.The author thinks that there are three reasons as follows:the lack of a detailed rules of evidence in domestic arbitration laws and international commercial arbitration rules,the difference and diversity of law employed by various jurisdictions and the delocalization required by the international elements of international commercial arbitration.The third chapter focuses on the advantages of soft law of evidentiary rules in international commercial arbitration.The author discusses that the soft law instruments relating to the rules of evidence in international commercial arbitration should still take efficiency into priority and improve the fairness and justice in international commercial arbitration.And then,such soft law instruments exclude some uncertainty to enhance the foreseeability of arbitral proceedings.At last,the soft law instruments of evidentiary rules in international commercial arbitration contribute to the emergency of hard law.The fourth chapter mainly discusses the application and the legal binding force of soft law instruments on rules of evidence in international commercial arbitration.The legal binding effect is empowered by both implied or expressed party autonomy and the power of discretion to arbitral tribunals.In practice,party autonomy should be taken into priority.When arbitral tribunal can not find evidence to prove the existence of party autonomy,it will decide the application of evidentiary rules by its own discretionary power.The fifth chapter gives some suggestions on the establishment of soft law instruments relating to the rules of evidence in international commercial arbitration in China.According to existing arbitration law,arbitration rules and the guidelines on rules of evidence,China has two ways to ensure the soft law instruments relating to the rules of evidence in international commercial arbitration as follows:making appropriate soft law instruments of evidentiary rules and applying existing such soft law instruments in international community.