Mandatory Rules Of Law Research Articles

International Commercial Arbitration and the Application of Mandatory Rules of Law

The purpose of this article is to try and synthesize the views that have been put forward to date and analyze them in a comprehensive framework. The article begins with an analysis of:(1) the concept of mandatory rules;(2) the position of the debate within international commercial arbitration;(3) the sometimes overlooked distinction between issues of jurisdiction and the application of mandatory rules;(4) legal and policy arguments for the application of mandatory rules; and(5) the relevance of party autonomy and possible types of evidence of consent for or against the application of mandatory rules.This leads on to a critical analysis of the suggestions postulated by leading authors, organisations and treaties, and finally, an evaluation of the various individual factors that may come into play if an arbitrator is found to have a discretion as to whether to apply mandatory rules in the absence of express consent from the parties.

International Commercial Arbitration and the Application of Mandatory Rules of Law

The purpose of this article is to try and synthesize the views that have been put forward to date and analyze them in a comprehensive framework. The article begins with an analysis of:(1) the concept of mandatory rules;(2) the position of the debate within international commercial arbitration;(3) the sometimes overlooked distinction between issues of jurisdiction and the application of mandatory rules;(4) legal and policy arguments for the application of mandatory rules; and(5) the relevance of party autonomy and possible types of evidence of consent for or against the application of mandatory rules.This leads on to a critical analysis of the suggestions postulated by leading authors, organisations and treaties, and finally, an evaluation of the various individual factors that may come into play if an arbitrator is found to have a discretion as to whether to apply mandatory rules in the absence of express consent from the parties.

A Private Law Approach to Privacy; Mandatory Law Obliged?

This article contests the general assumption that Directive 95/46/EC concerning the processing of personal data and the free movement of such data requires implementation into mandatory rules of law. In this respect, several arguments are presented in order to stimulate discussion. This discussion is important because the mandatory or regulatory character of the rules laid down in Directive 95/46/EC influence the nature of rights over data in relation to the principle of freedom of contract. Moreover, it touches upon some core issues regarding European law such as the protection of our fundamental rights and freedoms; the scope of these rights, and freedoms and the correlation between them; as well as the scope of the European Union's authority to harmonise rules concerning data protection. Furthermore, the assumption that Directive 95/46/EC requires implementation into mandatory rules of law is the main point of resistance against a private law approach to the right to data protection. If this assumption is successfully disproved, it will clear the way for a wide-ranging discussion as to whether a private law approach to the right to data protection will lead to a more effective system of privacy protection in practice.

Book Reviews

International Commercial Arbitration – Party Autonomy and Mandatory Rules, by Giuditta Cordero Moss. Published by Tano Ascheloug, Norway (1999, 440 pp.). Hardcover. Price NOK 598. ISBN 82-518-3949-1. The question whether and to what extent party autonomy may be limited by mandatory rules of law in the context of international commercial arbitration is one of those fundamental yet elusive issues with which most arbitration practitioners will be confronted on a regular basis. The author of this comprehensive book, which has been submitted to the Faculty of Law of Oslo University in Norway for the Degree of Doctor Juris, says that one of her first encounters with the subject was when, in practice as in-house counsel in a Norwegian company, she had to consider the effects of EC competition law on a Swiss law agreement which contained an arbitration clause. Given Ms Moss’ impressive academic and professional background, which includes study in Italy, Russia and Norway, as well as practical experience in both Italy and Norway, it is with interest and expectation that one opens this book. Ms Moss’ study of the implications of mandatory rules of law – defined extensively – on party autonomy, defined as the conflict rule that permits the parties to choose the governing law of their agreement, is first and foremost an impressive exercise in comparative law. From the starting point of the Norwegian legal system, Ms Moss ranges widely, drawing parallels and observations from the laws of England, France, Italy, Sweden and Switzerland, as well as from other legal systems in passing. The book is divided into three parts, ‘Party Autonomy’, ‘International Commercial Arbitration’ and ‘International Commercial Arbitration – The Friction Between Party Autonomy …

Progressing towards a Uniform Commercial Code for Electronic Commerce or Racing towards Nonuniformity

The Magaziner Report encourages the development of a consistent commercial law environment against which electronic commerce transactions may take place. The author considers the current legal landscape, noting that while many efforts are underway to codify aspects of electronic commerce, these efforts are piecemeal in nature and may lead to the very lack of uniformity against which the Magaziner Report counsels. The author then briefly considers what lessons may be learned from the drafting history of the original U.C.C. as well as proposed Article 2B (now the Uniform Computer Information Transactions Act) governing transactions in computer information. She argues that Article 2B could benefit from some synthesis with efforts by the European Union and that the Clinton Administration should focus on identifying and harmonizing mandatory rules of law as it moves from broad statements of principle to practical implementation of a legal regime for electronic commerce.

Mandatory Rules of Law in International Business Arbitration

Of all mankind’s adventures in search of peace and justice, arbitration is amongst the earliest. Long before law was established, or courts were organised, or judges had formulated principles of law, man had resorted to arbitration for the resolution of discord, the adjustment of differences and the settlement of disputes. One of the recurring themes in International Business Arbitration is the tension between the will of the parties and the ability of states of regulate the conduct of arbitration proceedings. The general trend in international commercial arbitration is to respect, within limits, the will of the parties regarding the choice of law and the procedure for carrying out their arbitration. Thus, party autonomy is recognised as one of the cardinal elements of international business arbitration.

Note From The General Editor

five years have gone by since this journal was launched. In the introduction to the first issue, I wrote: > ‘It is the aim of this journal to strike a balance between academic and practical topics. It is hoped, however, that even articles of an essentially practical nature will nonetheless contain elements of lasting interest; the aim is to generate contributions of some depth, and not mere descriptions.’ The Editorial Board is gratified by the extent to which this objective has been satisfied. Thanks to a steady stream of high-caliber contributions, we have been able to maintain a level of quality reflected in the frequent references to the journal in scholarly publications and decided cases. One might predict already that a number of articles will turn out to be evergreen, such as Pierre Mayer's study on ‘Mandatory Rules of Law in International Arbitration,’ Vol. 2, p. 274, J. Gillis Wetter's proposal for ‘A Multi-Party Arbitration Scheme for International Joint Ventures,’ Vol. 3, p. 2, and Lord Justice Michael Mustill's investigation into ‘The New Lex Mercatoria : The First Twenty-Five Years,’ Vol. 4, p. 86. The only negative aspect of the …