Mandatory Rules in International Arbitration
The notion of mandatory rules of law has long been of interest in private international law. It is no wonder that the subject has also emerged as something of a preoccupation of those who are involved in the world of international commercial arbitration. As both legal academics and international arbitrators, the editors of this book took a keen interest in how mandatory rules might “fit” into the international arbitration picture. To better understand the phenomenon of mandatory rules (and to gauge whether its importance might possibly even be exaggerated in the international arbitral context), the editors convened at Columbia Law School at a workshop under the joint auspices of Columbia and the School of International Arbitration at Queen Mary University of London. The workshop gathered a small number of leading academics and practitioners to consider whether the notion of mandatory rules of law has a place in international arbitration and, if so, how it might best be accommodated
PDF of Title Page and T.O.C.
Editors' Note
About the Authors
Introduction The Origin and Operation of Mandatory Rules
George A. Bermann
Part I. Mandatory Rules in International Litigation
Chapter 1 Mandatory Rules in Civil Litigation: Status of the Doctrine Post-Globalization
Hannah L. Buxbaum
Chapter 2 How do Mandatory Rules of Law Function in International Civil Litigation?
Bernard Audit
Part II. Mandatory Rules in International Commercial Arbitration
Chapter 3 The Arbitrator and “Mandatory Rules of Law”
Alan Scott Rau
Chapter 4 Applying Mandatory Rules of Law in International Commercial Arbitration
Laurence Shore
Chapter 5 Does International Arbitration Need a Mandatory Rules Method?
Alexander K.A. Greenawalt
Chapter 6 Mandatory Rules in International Commercial Arbitration: An English Law Perspective
Audley Sheppard
Chapter 7 Mandatory Law in Arbitration
Hans Smit
Part III. Mandatory Rules and Investment Arbitration
Chapter 8 Investment Arbitration
Andrea K. Bjorklund
Chapter 9 Investment Treaty Arbitration
Donald Francis Donovan
Conclusion Mandatory Rules in International Arbitration: Too Much Too Early or Too Little Too Late?
Loukas Mistelis
Bibliography
Index
Loukas Mistelis is an acknowledged authority on international dispute resolution. He has been listed as one of the "leading lights", 45 under 45, amongst the top 15 highlighted members of the list and is listed on the Who's Who Commercial Arbitration since 2007. Loukas Mistelis is the Clive Schmitthoff Professor of Transnational Commercial Law and Arbitration at Centre for Commercial Law Studies, Queen Mary University of London and the Director of the School of International Arbitration. He is also Visiting Professor, NYU in London and was a Visiting Scholar at Columbia University. He is also an Academic Member of the Investment Treaty Forum, British Institute of International and Comparative Law and of the Institute of Transnational Arbitration. Professor Mistelis was educated in Greece, France, Germany and Japan. He has been a member of the Athens Bar since 1993. He is fluent in English, German and Greek, and has good knowledge ofFrench, and basic knowledge of Polish, Russian and Spanish. His publications (in English, German, Greek and Russian) include more than 50 referred articles and ten books. His arbitration experience covers ICC, ICSID, LCIA, UNCITRAL, SCC and Moscow cases.
George A. Bermann is Professor of Columbia University School of Law (since 1975) and currently Jean Monnet Professor of European Union Law; Walter Gellhorn Professor of Law; Director, European Legal Studies Center. He teaches courses on Comparative Law, European & EU Law, WTO Law, Transnational Litigation and Arbitration. He is a member of thefaculty of the College d'Europe (Bruges, Belgium) and of the D.E.S.S. of Law and Globalization of the Institut des Sciences of Politiques (Sciences Po, Ecole de Droit) (Paris). He is also visiting Professor at the University of Paris I and previously at University of Paris II, Bordeaux, Fribourg, Lausanne, St. Gallen; New York University; Tulane University and Bucerius Law School (Hamburg). Professor Bermann serves as President, Académie Internationale de Droit Comparé (Paris), 2006 to date; President, American Society of Comparative Law (ASCL), 1998 to 2002; Editor in Chief, American Journal of Comparative Law, 2004 to 2008; Court-appointed foreign law expert on French, German, UK, Swiss and EU Law; and is Founder and Chair of the Board, Columbia Journal of European Law, 1997 to date. His international arbitration activities include Chief Reporter, ALI Restatement of Law of International Commercial Arbitration, 2008 to date; Director, American Arbitration Association; anelist,International Center for Dispute Resolution (ICDR), American Arbitration Association; International Commercial Arbitrator; counsel and expert witness in international arbitrations; and Member, Academic Council, Institute for Transnational Arbitration (ITA). Professor Bermann was a Jervey Fellow, Parker School of Foreign and Comparative Law, 1973 to1975 and received his J.D. from Yale Law School in 1971 where he was editor of the Yale Law Journal. He earned a B.A. from Yale College in 1967 (summa cum laude with exceptional distinction in political science).
Contributing Authors:
Bernard Audit, Professor, University of Paris II
Andrea K. Bjorklund, Professor, University of California, Davis School of Law
Hannah L. Buxbaum, Professor, Indiana University Maurer School of Law
Donald Francis Donovan, Partner, Debevoise & Plimpton LLP
Alexander K. A. Greenawalt, Professor,-Pace University School of Law
Alan Scott Rau, Professor,University of Texas at Austin School of Law
Audley Sheppard, Partner, Clifford Chance LLP
Laurence Shore, Partner, Gibson, Dunn & Crutcher
Hans Smit, Professor, Columbia University School of Law
"This book is compulsory reading on an important and challenging topic of international commercial arbitration. Hopefully it will find its way to those in arbitration law or practice struggling with apparently conflicting demands between trade liberalism and party autonomy on the one hand and protection of public interests on the other."
-Filip De Ly, Professor of Law at Erasmus School of Law
"A masterful treatment of an increasingly significant topic."
-William W. Park, Professor of Law, Boston University; President, London Court of International Arbitration; General Editor, Arbitration International
"This important collection of chapters from experienced practitioners, arbitrators and academics confirms what we have long, and instinctively, known: a circumscribed set of rules applies in every arbitration, no matter the seat, applicable law, nationality of the parties and tribunal, or administering institution. More importantly, this book assists in the next step: identifying the source and defining the content of mandatory rules. The verb "assists" is important because we also know there are no easy answers to these questions, which require careful balancing of a dizzying array of multiple interests and issues: freedom of contract/party autonomy and public policy/ordre public; individual rights and State sovereignty; private and public international law; civil and common law; domestic, international and transnational law; procedural and substantive law; territorial and extraterritorial scope of laws; and the proper role of courts and arbitration tribunals in resolving disputes. The book is also very practical, for example, warning that there are (potentially) 26 mandatory rules applicable to an arbitration seated in London and illustrating (potentially) bullet-proof arbitration and choice-of-law clauses."
-Lucy Reed, Partner and Co-Head of the International Arbitration Practice Group, Freshfields Bruckhaus Deringer LLP, Former President of the American Society of International Law.
Loukas Mistelis is an acknowledged authority on international dispute resolution. He has been listed as one of the "leading lights", 45 under 45, amongst the top 15 highlighted members of the list and is listed on the Who's Who Commercial Arbitration since 2007. Loukas Mistelis is the Clive Schmitthoff Professor of Transnational Commercial Law and Arbitration at Centre for Commercial Law Studies, Queen Mary University of London and the Director of the School of International Arbitration. He is also Visiting Professor, NYU in London and was a Visiting Scholar at Columbia University. He is also an Academic Member of the Investment Treaty Forum, British Institute of International and Comparative Law and of the Institute of Transnational Arbitration. Professor Mistelis was educated in Greece, France, Germany and Japan. He has been a member of the Athens Bar since 1993. He is fluent in English, German and Greek, and has good knowledge ofFrench, and basic knowledge of Polish, Russian and Spanish. His publications (in English, German, Greek and Russian) include more than 50 referred articles and ten books. His arbitration experience covers ICC, ICSID, LCIA, UNCITRAL, SCC and Moscow cases.
George A. Bermann is Professor of Columbia University School of Law (since 1975) and currently Jean Monnet Professor of European Union Law; Walter Gellhorn Professor of Law; Director, European Legal Studies Center. He teaches courses on Comparative Law, European & EU Law, WTO Law, Transnational Litigation and Arbitration. He is a member of thefaculty of the College d'Europe (Bruges, Belgium) and of the D.E.S.S. of Law and Globalization of the Institut des Sciences of Politiques (Sciences Po, Ecole de Droit) (Paris). He is also visiting Professor at the University of Paris I and previously at University of Paris II, Bordeaux, Fribourg, Lausanne, St. Gallen; New York University; Tulane University and Bucerius Law School (Hamburg). Professor Bermann serves as President, Académie Internationale de Droit Comparé (Paris), 2006 to date; President, American Society of Comparative Law (ASCL), 1998 to 2002; Editor in Chief, American Journal of Comparative Law, 2004 to 2008; Court-appointed foreign law expert on French, German, UK, Swiss and EU Law; and is Founder and Chair of the Board, Columbia Journal of European Law, 1997 to date. His international arbitration activities include Chief Reporter, ALI Restatement of Law of International Commercial Arbitration, 2008 to date; Director, American Arbitration Association; anelist,International Center for Dispute Resolution (ICDR), American Arbitration Association; International Commercial Arbitrator; counsel and expert witness in international arbitrations; and Member, Academic Council, Institute for Transnational Arbitration (ITA). Professor Bermann was a Jervey Fellow, Parker School of Foreign and Comparative Law, 1973 to1975 and received his J.D. from Yale Law School in 1971 where he was editor of the Yale Law Journal. He earned a B.A. from Yale College in 1967 (summa cum laude with exceptional distinction in political science).
Contributing Authors:
Bernard Audit, Professor, University of Paris II
Andrea K. Bjorklund, Professor, University of California, Davis School of Law
Hannah L. Buxbaum, Professor, Indiana University Maurer School of Law
Donald Francis Donovan, Partner, Debevoise & Plimpton LLP
Alexander K. A. Greenawalt, Professor,-Pace University School of Law
Alan Scott Rau, Professor,University of Texas at Austin School of Law
Audley Sheppard, Partner, Clifford Chance LLP
Laurence Shore, Partner, Gibson, Dunn & Crutcher
Hans Smit, Professor, Columbia University School of Law
"This book is compulsory reading on an important and challenging topic of international commercial arbitration. Hopefully it will find its way to those in arbitration law or practice struggling with apparently conflicting demands between trade liberalism and party autonomy on the one hand and protection of public interests on the other."
-Filip De Ly, Professor of Law at Erasmus School of Law
"A masterful treatment of an increasingly significant topic."
-William W. Park, Professor of Law, Boston University; President, London Court of International Arbitration; General Editor, Arbitration International
"This important collection of chapters from experienced practitioners, arbitrators and academics confirms what we have long, and instinctively, known: a circumscribed set of rules applies in every arbitration, no matter the seat, applicable law, nationality of the parties and tribunal, or administering institution. More importantly, this book assists in the next step: identifying the source and defining the content of mandatory rules. The verb "assists" is important because we also know there are no easy answers to these questions, which require careful balancing of a dizzying array of multiple interests and issues: freedom of contract/party autonomy and public policy/ordre public; individual rights and State sovereignty; private and public international law; civil and common law; domestic, international and transnational law; procedural and substantive law; territorial and extraterritorial scope of laws; and the proper role of courts and arbitration tribunals in resolving disputes. The book is also very practical, for example, warning that there are (potentially) 26 mandatory rules applicable to an arbitration seated in London and illustrating (potentially) bullet-proof arbitration and choice-of-law clauses."
-Lucy Reed, Partner and Co-Head of the International Arbitration Practice Group, Freshfields Bruckhaus Deringer LLP, Former President of the American Society of International Law.
PDF of Title Page and T.O.C.
Editors' Note
About the Authors
Introduction The Origin and Operation of Mandatory Rules
George A. Bermann
Part I. Mandatory Rules in International Litigation
Chapter 1 Mandatory Rules in Civil Litigation: Status of the Doctrine Post-Globalization
Hannah L. Buxbaum
Chapter 2 How do Mandatory Rules of Law Function in International Civil Litigation?
Bernard Audit
Part II. Mandatory Rules in International Commercial Arbitration
Chapter 3 The Arbitrator and “Mandatory Rules of Law”
Alan Scott Rau
Chapter 4 Applying Mandatory Rules of Law in International Commercial Arbitration
Laurence Shore
Chapter 5 Does International Arbitration Need a Mandatory Rules Method?
Alexander K.A. Greenawalt
Chapter 6 Mandatory Rules in International Commercial Arbitration: An English Law Perspective
Audley Sheppard
Chapter 7 Mandatory Law in Arbitration
Hans Smit
Part III. Mandatory Rules and Investment Arbitration
Chapter 8 Investment Arbitration
Andrea K. Bjorklund
Chapter 9 Investment Treaty Arbitration
Donald Francis Donovan
Conclusion Mandatory Rules in International Arbitration: Too Much Too Early or Too Little Too Late?
Loukas Mistelis
Bibliography
Index