| Soft law has always occupied an important seat in the procedural governance of international commercial arbitration.Various types of arbitration rules,procedural guidelines and other soft laws are often regarded as “best practices” in a certain field,which provide the parties with options to achieve dispute resolution with the advantages of low cost and high efficiency.The important position and role of soft law in international commercial arbitration is unquestionable,but at the same time,it should not be overestimated because of an overly optimistic attitude towards soft law,leading to ignoring the essence of soft law,and problems existing in the process of formulating and applying soft law.Through the actual analysis of the effect and utility of soft law in international commercial arbitration,the way of application and the application requirements,it is concluded that there are limitations in the application of soft law,such as party autonomy,arbitral tribunal discretion and the applicable law of arbitration.These factors bring difficulties to the application of soft law.Solving the conflicts between party autonomy and party “authorization”,arbitration procedure efficiency and fairness,arbitration autonomy and mandatory provisions,and fully clarifying the order of requirements when applying soft law is to ease the dilemma when applying soft law in practice.Combined with the questioning of soft law in international commercial arbitration,it is analyzed from the perspective of ought law.Taking the “legality” of the soft law-making body,the “legality” of the formulation process,the acceptance of the industry,and the tendency to be arbitrary,as the standard of “soft law as it ought to be”,to respond to the current assumptions about the soft law formulation process and improve the “legality” of soft law in international commercial arbitration.At the same time,in the process of promoting the further development of soft law in the field of international commercial arbitration,we should not ignore the traps brought about by the fragmentation of soft law,explosive growth in quantity and mutual competition.By giving full play to the function of the autonomy of soft law,paying attention to the necessity of formulating soft law and the modesty in its application and development,and combining with hard law,we can give full play to the role of soft law in the governance of international commercial arbitration procedures,so as to achieve a better rule of soft law in international commercial arbitration. |
