Mandatory Rules in International Business Litigation - Chapter 32 - Reflections on International Arbitration
In 2007, George Bermann organized a symposium in New York City under the auspices of Columbia Law School and Queen Mary University of London on the subject of mandatory rules of law in international arbitration. Over a decade later, this Festschrift offers an opportunity to revisit the matter, taking also into consideration the teachings or developments that have taken place since regarding the status of mandatory rules of law before national courts or arbitral tribunals.
To that end, this contribution will first retrace the difference of treatment, before national courts, between forum and foreign mandatory rules and the gradual recognition in theory, if not in actual practice, of the latter. It will then address how the distinction evolves before arbitral tribunals, which are frequently stated to have no forum, into mandatory rules of the lex causae (most often a lex contractus) and those of another State. Through that prism, it is suggested that an arbitral tribunal might be well inspired to give more consideration to mandatory rules not originating in the lex causae than national courts usually do to foreign mandatory rules; and that, to that end, they should apply the line of reasoning that has been advocated before national courts, based on some form of interest analysis, whatever the origin of the mandatory rule. This balanced approach may also lead to a more restrictive attitude with regard to the peremptory rules of the lex causae itself, in line with the international character of the situation. Eventually, even public laws proper could benefit from such a liberal and flexible approach.