Introduction: Mandatory Rules Of Law In International Arbitration - ARIA Vol. 18 No. 1-2 2007
George A. Bermann - Jean Monnet Professor of European Union Law and Walter Gellhorn Professor of Law, Columbia Law School.
Originally from American Review of International Arbitration - ARIA
MANDATORY RULES OF LAW IN
George A. Bermann*
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
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").1 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