Originally from American Review of International Arbitration - ARIA

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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 special issue of the American Review of International Arbitration 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 in June 2007 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.  In fact, as shown by the articles that follow in this issue, the participants display a range of views on how the notion of mandatory rules of law should be approached and treated.

In this Introduction, I mean to raise only the most essential questions pertaining to the place of mandatory rules of law in international commercial arbitration.  Because the notion of mandatory rules of law has arisen primarily in the context of private international law, any discussion of them in arbitration appropriately starts with its usage in international civil litigation. 

I. WHAT IS A MANDATORY RULE OF LAW?

I begin with a matter of definition.  In the private international law literature, a norm or rule of law is most often described as “mandatory” when a court must apply it, even if the court, under the operation of its conflict of laws rules, would ordinarily apply some other body of law (often referred to casually as “the otherwise applicable law”).   As indicated in several of the articles in this issue, other terms – often in other languages (lois de police in French, for example) – capture much the same idea. 

On other occasions, authors define as “mandatory” those rules of law that cannot be derogated from by private parties in the exercise of their party autonomy.  They are, in other words, rules of law that the parties cannot, as the saying goes, “contract around.”