국제상사중재에 있어서 우의적 중재인

The arbitrator as a amiable compositeur will resolve the dispute in accordance with practical rationality. This rationality is based on the effectiveness of current practices and customs of the case. The purpose of amiable composition institutions are looking for a solution to the disputes through equitable de-nationalized bases. The authority of amiable compositeur has the advantages of flexibility. Its powers are limited by parties’ will, mandatory norms and equity. The concept of amiable compositeur is criticised skeptical due to its lack of expectation, ambiguity and subjectivity. However prestigious international arbitration institutions such as the UNCITRAL Model Arbitration and ICC arbitral tribunal have used and accepted this system in their rules and the modern judicial system also imply it. Most international instruments and the domestic judicial system require the following two requirements to assure arbitration award made by amiable compositeur valid and enforceable: “i) the parties” authorization to do so, and ii) substantive and procedural public order should be respected. When you lack any of these elements in arbitral awards determined by amiable compositeur, its recognition and enforcement are denied. Whether amiable composition system will develop depend on clarifying the issues and determining the extent and limits of amiable compositeur If you want to resolve the parties reasonably, amicable composition will have a large potential impact on all disputes. Hoping to try a bona fide consultation practices between parties when specified its authorities in the contracts and to promote confidence to such a arbitrator, when an arbitrator acting as amiable compositeur faithfully comply with the obligations in accordance with its mandate, this system can get confidence as the best way to resolve disputes in international commercial law.