Mandatory rules of law in international arbitration

Abstract

the impact of mandatory rules of law is of great practical importance in international arbitration. Yet it has scarcely been analysed in a serious manner. A few studies have been devoted to isolated aspects of the topic, particularly in connection with competition law.1 The present writer has, however, come across only one thorough effort at synthesis, to wit an essay by Yves Derains2 which analyses arbitral awards and attempts to distil a system from them. This paucity of scholarly work is surprising. It contrasts with the abundance of theses, articles, and notes which have been written during the last half century, especially the past two decades,3 on the subject of mandatory rules of law as invoked before national judges. The same observation applies if one looks to sources of positive law. Neither the various international treaties dealing with arbitration (such as the New York and Geneva Conventions), nor such a comprehensive modern national law as the French Nouveau Code de Procedure Civile , contain the slightest provision with respect to the relationship between mandatory rules of law and the arbitral process. On the other hand, no less than four international treaties contain at least one article dealing with the impact of mandatory rules of law before national judges.4 Although developments injudicial case-law is not the focus of this article, the abundance of material in this related area may well suggest a definition of mandatory rules of law valid in arbitration as well. There are in fact many definitions. For present purposes, we may be inspired by those given in the various treaties, which yield the following synthesis: a mandatory rule ( loi de police in French) is an imperative provision of law which must be applied to an international relationship irrespective of the law that governs that …