Originally from the World Arbitration and Mediation Review (WAMR)
 

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In the context of arbitration, overriding provisions introduced to fight COVID-19 bring us back to the pervasive tension between party autonomy and mandatory rules.   Arbitral literature and practice are full of opposing views on the applicability of overriding mandatory rules by arbitrators and its review by domestic courts.   Addressing the issue of overriding mandatory rules in international arbitration is more complex than in the judicial context, where courts are bound to apply the international mandatory rules of the forum.

To complicate things, not all the provisions introduced during the new “coronavirus” emergency are self-proclaimed overriding mandatory rules, although learned scholars and practitioners affirm that some of them may be so.   Time limits are a clear example.  While some legislatures have not taken any particular measures in that regard, others have suspended and extended limitation periods for any actions and rights.  The question then arises whether parties to a contract subject to a foreign law may invoke these provisions in court proceedings and arbitration.  The answer implies the characterization of time limits and the analysis of the public, economic, and social policy goals that the referred time limit extensions pursue. Being a legislative interference in the realm of contractual performance and party autonomy, it is essential to determine which domestic provisions extending time limits have this internationally mandatory value.

Given the above, the present article examines the application of provisions suspending and extending time limits as overriding mandatory rules.  The analysis is limited to the context of arbitration for reasons of limited time and space, and the relatively scarce literature—so far—on the topic.  After this Introduction, Section II gives an overview on how major jurisdictions have dealt with time limits under the COVID-19 pandemic. Section III introduces the concept of overriding mandatory rules and the arbitrator’s duty to apply them.  Section IV analyzes the overriding character of provisions suspending and extending time limits.  Finally, the article concludes in Section V.