The Construction Of China’s Amiable Composition

On April 16,2019,the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council issued “Several Opinions on Improving the Arbitration System to Improve the Credibility of Arbitration”,which clarified that the innovation and exploration of the arbitration system has become an important content of China’s diversified dispute resolution mechanism.“Amiable composition”,as a form of arbitration based on the principle of fairness and good faith,has been widely recognized and applied internationally,and its inherent superiority beyond the domestic law of a country(region) provides a great solution for the resolution of international commercial disputes.However,After more than 20 years since China’s Arbitration Law was enacted,there has been no provision for amiable composition,and it has received a little attention in the academic circle.With the further opening up of our country and the further improvement of internationalization,amiable composition has gradually entered people’s field of vision,and has become an important part of the amendment agenda of China’s “Arbitration Law”.This article is composed of three parts and six contents including introduction,four chapters and conclusion.The first chapter mainly discusses the basic theory of amiable composition.First of all,it reviews the historical origin and development trend of amiable composition;secondly,it introduces the existing domestic and extraterritorial scholars’ views on the concept of amiable composition,analyzes and concludes that “arbitration as a amiable compositeur” and“arbitration based on the principle of fairness and good faith” are essentially the same description of amiable composition in different forms and the application of friendly arbitration.Finally,the author compares amiable composition with legal arbitration and merchant law,so as to prevent the confusion between amiable composition and other concepts.The second chapter mainly analyzes the experience of the development of amiable composition in the world.First of all,it gives a brief introduction to the legislation of amiable composition in traditional civil law countries,traditional common law countries,emerging economies and Hong Kong,Macao and Taiwan.Among them,the author makes a more in-depth analysis of the provisions of the French amiable composition,and makes a detailedintroduction to the historical development of the British amiable composition.Secondly,the author summarizes the experience of foreign amiable composition.From the aspect of advantages,it is concluded that amiable composition can make up for the lack of legal function,improve the arbitration strength and attraction of a country(region),respect the autonomy of the parties’ will,and maintain the value of the harmonious relationship between the parties.From the aspect of legislative provisions,it is concluded that the legislation of various countries(regions) generally includes three contents:(1)the premise of the authorization of the parties;(2)the principle of fairness and reasonableness(or fairness(3)it is not allowed to violate the mandatory legal rules,public order and good customs,and should follow certain procedures.The third chapter mainly expounds the realistic foundation and predicament of constructing amiable composition in China.First of all,for the reasons that amiable composition helps to make up the inherent defects of legal arbitration,meet the actual needs of the arbitration market,respect the party’s autonomy of will and maintain the harmonious relationship between the parties,there is a real need to build a amiable composition in China.Secondly,China’s arbitration law does not explicitly prohibit the amiable composition,and the amiable composition has already existed in the judicial practice of Shanghai Free Trade Zone,and dozens of arbitration institutions have introduced the amiable composition rules,all of which reflect that amiable composition has a living space in China.Finally,by analyzing the abstraction and fuzziness,unpredictability and uncertainty of the amiable composition,the inherent defects of demanding the arbitration team and the actual conflicts with China’s national conditions,the author is facing the dilemma of the implementation of the amiable composition,which provides the direction for the targeted improvement of the amiable composition in China.In the fourth chapter,the author puts forward some suggestions on the construction of amiable composition in China.First of all,it is suggested that the improvement of amiable composition should include the following aspects: making clear that amiable composition is only applicable to international arbitration,stipulating that the explicit authorization mode of amiable composition is mainly in written form and the authorization time is before the arbitral award is made,determining that the applicable basis of chapter should include “international trade practices,contract terms,fair and good faith principles and legal rules”,stipulating amiable composition Good arbitration should not violate the social public interest and due process,and clarify the reasons for friendly arbitration.Secondly,the author proposes thatChina’s arbitration institutions should thoroughly administrate and strengthen the cultivation of high-quality arbitration team,so as to improve China’s national conditions to adapt to the development of chapter.Finally,on the basis of improving the amiable composition,the author combines with China’s “deepening the development of chapter” policies and policies of “reform and opening up” and “building a first-class business environment of internationalization,legalization and facilitation” put forward the promotion path of amiable composition in China.