国际商事仲裁中的“软法”适用问题研究

Research on the Application of “Soft Law” in International Commercial Arbitration

摘要: 在国际商事仲裁领域，以各类仲裁规则、程序指南为代表的软法常常因其制定成本低和效率高的特征以及回应国际商事仲裁各领域中当事人典型需求的功能而成为当事人所偏好的选择，在国际商事仲裁发挥着广泛的影响力。但同时软法也在发挥其效用的过程中面临着挑战，包括当事人意思自治的局限和仲裁庭自由裁量权的局限。因此，在推进国际商事仲裁领域软法建设的过程中，需要警惕软法不当适用导致的陷阱，明确软法制定的必要性的同时也需要审慎权衡软法的适用，将软法与硬法相结合，使国际商事仲裁可以更好地满足当事人的需求，使国际商事仲裁中的软法成为公平公正解决当事人之间争议的有效途径。

Abstract: In the field of international commercial arbitration, soft law, represented by various types of arbitration rules and procedural guides, is often preferred by the parties due to its low-cost and high- efficiency features, as well as its function of responding to the typical needs of the parties in various areas of international commercial arbitration, and it exerts a wide range of influence in international commercial arbitration. However, at the same time, soft law also faces challenges in realizing its usefulness, including the limits of party autonomy and the limits of arbitral tribunal discretion. Therefore, in promoting the construction of soft law in the field of international commercial arbitration, it is necessary to be alert to the pitfalls caused by the improper application of soft law, to clarify the necessity of soft law and at the same time weigh the application of soft law carefully, to combine soft law with hard law, so as to make international commercial arbitration better satisfy the needs of the parties, and to make soft law in international commercial arbitration become an effective way of resolving the disputes between the parties in a fair and just manner.