The Application of Substantive Mandatory Rules in International Commercial Arbitration From the Perspective of an EU UNCITRAL Model Law Jurisdiction

Abstract

The article deals with the obligation of arbitral tribunals to apply the substantive mandatory rules of the forum or of the law of third states not designated by the parties or by the tribunal (especially that of the state where enforcement of the award is anticipated) in international disputes. This obligation, with regard to the mandatory rules of the forum, has been challenged on the basis of the assumption that, in international commercial arbitration, the arbitrators have no forum. The author contests this assumption as such and also in light of the United Nations Commission on International Trade Law (UNCITRAL) Model Law and the Rome I and Rome II Regulations applicable in Greece. Same obligation, with regard to the law of third states, has been challenged on the basis of the assumption that the will of the contracting parties, as to the law applicable to the merits of the case, shall prevail. The author challenges this assumption as well by arguing that the limits of the parties’ autonomy in light of said Regulations undoubtedly exist also in the context of international commercial arbitration. Other matters pertinent to said issues are also dealt with in the article.