Published: 2026-03-02 00:00
Amid the trend in international commercial arbitration towards greater efficiency and flexibility, "amicable composition," as a mechanism that transcends the strictness of traditional law to pursue substantive justice in individual cases, is receiving increasing attention. It represents a deepening of the principle of party autonomy, permitting the arbitral tribunal, under specific conditions, to go beyond legal provisions and render an award based on fairness, reasonableness, and good faith. This interpretation will analyze Article 48 of the ICDPASO Commercial Arbitration Rules, examining the commencement conditions, core connotations, and practical value of amicable composition in the context of international commercial arbitration practice. It aims to clarify how this mechanism provides a more flexible and commercially logical solution for complex business disputes.
I.Text of Article48 “Amicable Composition”
If the parties agree in the arbitration agreement or unanimously make a written request during the arbitral proceedings, the arbitral tribunal may conduct an amicable composition ex aequo et bono.
II. Analysis of the Significance of the Provision
Amicable composition, also known as "arbitration ex aequo et bono" or arbitration based on principles of fairness and good faith, refers to a process where, with the parties' authorization and consent, the arbitral tribunal decides the dispute based on generally accepted notions of fairness, good faith, and commercial reasonableness, rather than by strictly applying specific legal rules. This mechanism allows the tribunal to pursue substantive justice in individual cases, avoiding unreasonable outcomes that might result from the mechanical application of law. It is particularly relevant in commercial disputes involving long-term contract performance, complex industry practices, or legal gaps. Amicable composition is not an independent arbitration procedure, but rather an authorization granted by the parties, based on their assessment of existing legal rules, allowing the tribunal to broaden its decisional approach to account for the transaction's specificities. Current academic discourse includes both supportive and cautious views. Proponents argue that amicable composition not only respects party autonomy but also adapts to the complex and varied international commercial transaction environment across different jurisdictions, potentially enhancing the international competitiveness of Chinese arbitration and aligning with the development of an "arbitration-friendly" judicial environment. Conversely, cautious voices note difficulties in defining the principles of fairness and good faith, the lack of unified standards for terms like "fairness, good faith, commercial reasonableness," and significant risks in judicial review, such as challenges related to public policy when reviewing awards made ex aequo et bono.
III. Core Points and Jurisprudential Analysis
(A) Dual and Strict Commencement Conditions
The provision specifies two parallel paths for initiating amicable composition: (1) prior agreement in the arbitration agreement; or (2) a unanimous written request from all parties during the arbitral proceedings. Both methods emphasize "unanimous" consent and a "written" form, ensuring the authorization is clear and irrevocable. This aligns fully with the requirement for "express authorization" found in ICC Rules Article 21(3)① and UNCITRAL Arbitration Rules Article 35(2)②, together forming the legitimate basis for amicable composition.
(B)Tribunal's Discretion and Duty
The provision states the arbitral tribunal "may" conduct an amicable composition, not that it "must." This grants the tribunal discretion, even after receiving party authorization, to assess whether the case is suitable for decision based on ex aequo et bono principles. For disputes involving mandatory legal provisions or public policy, the tribunal may exercise this power cautiously. While providing flexibility, this rule also emphasizes the tribunal's ultimate responsibility to safeguard the award's legality and enforceability.
(C) The Meaning of "Ex Aequo et Bono"
"Ex aequo et bono" is an open-ended and flexible legal concept. In practice, it allows the tribunal to: reasonably interpret or adjust contract terms that appear grossly unfair; give due consideration to the contract provisions, industry practices, trade usages, and the parties' long-term course of dealing (ICC Rules Article 21(2)③ and UNCITRAL Rules Article 35(3)④ explicitly require the tribunal to "take into account the provisions of the contract, if any, and any relevant trade usages"); and seek solutions based on general notions of fairness, justice, and commercial logic where legal rules are absent, unclear, or would lead to manifest injustice if strictly applied.
IV. Practical Advantages of this Article
1.Achieving Substantive Justice in Individual Cases: It provides a crucial tool for resolving complex commercial disputes where a strict application of law might lead to unfair results (e.g., deadlocks in long-term contracts, disputes in emerging fields), helping to maintain substantive balance and the foundational basis of commercial relationships.
2.Highlighting the Advantages of the Arbitration System: Vesting the decision to use amicable composition entirely in the parties is a full manifestation of contractual freedom and party autonomy in the dispute resolution phase, and is a core feature distinguishing arbitration from litigation.
3.Enhancing Award Acceptability and Commercial Relevance: It allows the tribunal to look beyond technical legal provisions and decide based on commercial practice and industry usage, rendering awards that better align with commercial logic and the parties' reasonable expectations, thereby increasing the acceptability and effectiveness of the award.
Conclusion
Article 48 of the ICDPASO Rules on "Amicable Composition" represents a further implementation of the principle of party autonomy, grounded in a deep understanding of trends in international commercial arbitration. Through a clear framework for authorization, it provides parties with a more flexible path, which may also contribute to legal development, when rigid and potentially outdated legal rules cannot adequately address complex, novel commercial transactions. Compared with major international arbitration rules such as those of the ICC and UNCITRAL, this ICDPASO provision features a distinctive approach in specifying the authorization procedure, emphasizing written form and unanimity to effectively balance procedural flexibility with seriousness. This mechanism not only enhances the adaptability of arbitration in resolving complex commercial disputes but also reflects the professional orientation of the ICDPASO Rules in serving the diverse and sophisticated needs of international commercial parties. In practice, parties and tribunals can draw upon established international practices, naturally incorporating consideration of the true intent of the contract, trade usages, and commercial context when applying ex aequo et bono principles, thereby rendering well-reasoned awards that are fair and closely aligned with commercial realities.
①ICC Arbitration Rules (2021), Art. 21(3):The arbitral tribunal shall assume the powers of an amiable compositeur or decide ex aequo et bono only if the parties have agreed to give it such powers.
② UNCITRAL Arbitration Rules (2021), Art. 35(2): The arbitral tribunal shall decide as amiable compositeur or ex aequo et bono only if the parties have expressly authorized tribunal to do so.
③ See ICC Arbitration Rules (2021), Art. 21(2): The arbitral tribunal shall take account of the provisions of the contract, if any, between the parties and of any relevant trade usages.
④ See UNCITRAL Arbitration Rules (2021), Art. 35(3): In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract, if any, and shall take into account any usage of trade applicable to the transaction.
