Research On The Application Of Friendly Arbitration Substantive Law

Under the social background of more international commercial arbitration,the legal assimilation and the widespread popularity of the autonomy of will,the importance of amiable composition gradually got extensive recognition from countries?regions? around the world.This article based on the scholars' existing research,through discuss the basis of amiable composition,the applicable conditions and extraterritorial legislation to confirm whether this law system is needed in our country.This article composed five chapters.The first chapter is to introduce the conception of amiable composition.Among this chapter,the compare of amiable composition with arbitrate in law is the importance of the discuss.The second chapter is to introduce the amiable composition legislation practice of extraterritorial countries?region?,combined with typical cases.Based on the discuss of the extraterritorial legislation practice,the unique advantage of amiable composition can be seen,and,establish it is the trend of future development of international commercial arbitration law field.The third chapter analysis the basis of the application of amiable composition system and its precondition.The basis has three aspects:first,the contract theory of international commercial arbitration;second,the principle of autonomy of the interested parties;third,the arbitrator's discretionary power.Amiable composition's precondition also need to meet three qualifications:first,the application of amiable composition system based on the authorization of the parties;second,the arbitral tribunal the laws at the locality of the allowed for amiable composition;third,only qualified arbitrators can decide as amiable compositeurs.Chapter four analyzes the application of law of amiable composition,and it's the general points of the whole article.Using amiable composition does not mean arbitrators should not apply legal rules or national commercial practice,but these entities legal norms should apply with the limited conditions.Instead,with the clear authorization of the parties,the arbitral tribunal shall investigate and ascertain the fact of the case and grant award in accordance with ex aequo et bono,with reference to contract terms and relevant international trade usages.The last chapter is about the design of constructing amiable composition in our country.As a reference,some possible approaches are provided in this chapter.