Chapter 2: Arbitrability of overriding mandatory rules
This chapter focuses on whether mandatory rules, due to their public policy character and high importance to States, can be brought to arbitration for dispute resolution, or are reserved for courts under State laws. This chapter aims to clarify whether mandatory rules are capable of settlement via arbitration today. Before getting into issuing an award on the merits, a mandatory law dispute that is capable of settlement in arbitration must be discussed from the governing laws perspective first. This chapter provides observations on arbitrability as it distinguishes between arbitrability and the validity of the arbitration agreement. Then subjective and objective arbitrability are discussed as two types of arbitrability. What is focused on in this book, however, is the objective arbitrability (subject-matter of a dispute), as there are still areas of law where some skepticism exists regarding arbitrability. Approaches and reflections on arbitrability in national and international sources are also discussed.
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