Abstract: In international arbitration, there is a kind of "friendly arbitration" that excludes any legal generality. China's arbitration law clearly stipulates that arbitration should be based on facts, conform to legal provisions, and resolve disputes fairly and reasonably, that is, the principle of fair and reasonable arbitration does not exclude the law. This paper discusses how to understand the difference between the principle of fairness and reasonableness and the direct application of law.
Keywords: arbitration law, fair and reasonable arbitration, friendly arbitration
Article 7 of the Arbitration Law of People's Republic of China (PRC) stipulates: "Arbitration shall be based on facts, comply with legal provisions, and resolve disputes fairly and reasonably." One understanding is that this article stipulates that arbitration is completely separated from court trial, court trial applies law, and arbitration applies the principle of fairness and reasonableness. From this point of view, it is further believed that the principle of fairness and reasonableness in arbitration can be judged entirely by the arbitrator's understanding of fairness and reasonableness, rather than by law. These understandings and propositions put forward the relationship between the application of law and the application of the principle of fairness and reasonableness in arbitration, that is, what is the basis for arbitrators to make judgments in the arbitration process. In Taiwan Province Province, some scholars call it "the benchmark of arbitration judgment" and think that "in litigation, the judge's judgment is bound by laws and precedents ... In arbitration, is the arbitrator's judgment bound by laws and precedents like the judge? Or do you rely on your conscience, professional knowledge and experience, but you can ignore the provisions of the law and do whatever you want? Or an abstract judgment based on "justice and fairness" and "order"? Still need to abide by certain rules or benchmarks? This is the fundamental problem of metamorphosis. " In Chinese mainland, some people call this issue "the application of law in arbitration", but it is not easy to distinguish it from the application of law in court trials. The "application of law" has a special meaning, generally referring to "state organs and their staff and social organizations authorized by the state use state power according to law and creatively apply legal norms to specific situations and legal activities of specific people". That is, the compulsory activities of state organs and their staff to exercise state power. Arbitration does not have the compulsory activities of the above-mentioned organs and personnel. Therefore, we generally refer to this issue as "arbitration judgment standard" or "arbitration judgment principle".
If the principle of fairness and reasonableness of the arbitration judgment standard is placed on the same position as the law, even if it is understood that the application of law is not considered in arbitration, there will be several logical consequences in domestic arbitration: because 1 arbitration only applies the principle of fairness and reasonableness, it will inevitably exclude the law. This law does not apply to arbitration. When the principle of fairness and reasonableness conflicts with the law, arbitration and litigation will form two independent judgment standards for resolving disputes. But this obviously violates the principle of uniform application of law and the supremacy of law in a country.
In international arbitration, there is indeed a kind of friendly arbitration that excludes the application of any law, or it is called "friendly settlement". In this form of arbitration, arbitrators are allowed to decide substantive issues according to the principles of fairness and good faith (maximexaqueoetbona or the principles of fair trade and good faith, agreement and good faith), so no law is applicable. However, this situation that only the principles of fairness and good faith are applied and the law is not applicable is not dispensable for the parties and arbitrators. Whether friendly arbitration can be conducted depends on the wishes of the parties. No friendly arbitration can be conducted without the authorization of the parties. In addition, friendly arbitration is restricted by the mandatory provisions of public policy and arbitration law. In international arbitration, the law of the place of arbitration is generally regarded as arbitration law. If friendly arbitration violates the requirements of public policy according to the laws of the arbitration place, it cannot be conducted. Civil law countries generally recognize the friendly arbitration system. France is the most representative country that recognizes the friendly arbitration system, while common law countries generally do not recognize friendly arbitration. The United States is too good to use the name of amiable arbitrator. Visible, friendly arbitration is generally in international commercial arbitration, because the parties to the arbitration belong to different countries, so the parties agree not to apply the laws of any country and submit the dispute to the arbitrator for arbitration in accordance with the principle of fairness and good faith. However, there are exceptions. Belgian arbitration law stipulates that an arbitrator can make an award as a friendly arbitrator in domestic arbitration agreed by the parties, but the parties can only authorize the arbitrator to conduct friendly arbitration after the dispute occurs. The purpose of this clause is to prevent the parties from blindly agreeing to friendly arbitration before realizing the nature and importance of their disputes. Belgium stipulates that international arbitration must be conducted according to law, and friendly arbitration cannot be conducted.
Although the provisions of different countries are different, they all proceed from the principle of sovereignty priority and decide whether to conduct friendly arbitration according to their national conditions. China is a unitary country, and the legislative power and legislative interpretation power are exercised by the National People's Congress and its Standing Committee, so it is necessary to ensure the unified formulation and application of laws. If there are two standards of litigation and arbitration in the process of dispute settlement, it will violate the principle of uniform application of law. Judging from the nature of arbitration system and arbitration institutions, although there are still disputes at present, it is generally believed that arbitration is a folk and expert way to solve disputes. The arbitration institution is not a national judicial organ, so it can't be understood as the "second court", and it can't be divorced from the law and set a set of adjudication standards for resolving disputes.
How to understand the fair and reasonable principle stipulated in China's arbitration law, and how to understand the difference between fair and reasonable principle and directly applicable law?
First of all, we should distinguish between foreign-related arbitration and domestic arbitration in judging criteria. In foreign-related arbitration, because foreign parties are unfamiliar with Chinese laws and some legal facts occur abroad, the parties are allowed to choose to apply foreign laws, international practices and international conventions with certain related factors. China has not stipulated that "friendly arbitration" can be conducted in foreign-related arbitration.