The Arbitrator And "Mandatory Rules Of Law" - ARIA Vol. 18 No. 1-2 2007
Alan Scott Rau - Burg Family Professor of Law, University of Texas at Austin School of Law.
Originally from American Review of International Arbitration - ARIA
[When] we are talking about the processes by which
disputes are resolved, I think it is not an overstatement
to say that here too, ethical questions are likely to resolve
themselves at bottom into issues of contract interpretation
strongly leavened with considerations of prudence.
--- Rau, On Integrity in Private Judging
When presented with the topic of this panel—when asked to say something about how “international commercial arbitrators should deal with mandatory rules of law”—one’s first reaction is to say simply, “very carefully”—and then sit down. After having listened to this you may well conclude that this might after all have been the safest course—that I would have done well to yield to the temptation.
Trying to sort out my thinking on the topic has become—as so often happens—an exercise in introspection. We are all victims of the pre-existing mental structures with which we come to any intellectual exercise—captives of “the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man.” Some of us never realize this—others do, but simply can’t rise above them—and still others sometimes, somehow, manage to transcend them. Here I am in the second category—as ever securely in the second rank.
So here are my preconceptions, my mental map of the terrain—bearing in mind that sweeping, unqualified propositions are most unlikely to be wise—and that striking an attitude is not, after all, quite the same thing as making an argument.
I. “THE EXPECTATIONS OF CONTRACTING PARTIES”
What can it possibly mean to ask—as an endless literature relentlessly exhorts us to ask—whether arbitrators have some sort of a “duty” or “obligation” to enforce rules of mandatory law? It is really rather hard to see the point of an inquiry formulated in this way—since it seems so obviously to elide just about all the interesting questions (for example, “to whom?”). I can work up an interest in the positive law implications of arbitral failure (I discuss these below); I can also work up an interest in the pragmatic constraints that push individual behavior in one direction or another. But untethered from either of these, the abstract notion of “obligations” without consequences—obligations “that exist but cannot be enforced”—are “ghosts that are seen in the law but that are elusive to the grasp.”