Private International Law
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Private International Law

Contemporary Challenges and Continuing Relevance

Edited by Franco Ferrari and Diego P. Fernández Arroyo

Is Private International Law (PIL) still fit to serve its function in today’s global environment? In light of some calls for radical changes to its very foundations, this timely book investigates the ability of PIL to handle contemporary and international problems, and inspires genuine debate on the future of the field.
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Chapter 17: Private international law in international arbitration

George A. Bermann

Abstract

If the parties to an arbitration agreement have chosen a law applicable to the merits of their dispute, this is the law that the tribunal will in principle apply. However, like many national courts, tribunals may, on rare occasion, be attracted to the idea of applying the mandatory law of a third country, due to its having a compelling interest in the matter. There are several paths a tribunal may follow, rather than flatly denying the application of such mandatory law. It may give the choice of law clause a restrictive interpretation. It may treat the mandatory law as a fact rather than a rule of decision. It may incorporate the mandatory law into the notion of transnational public policy. It must in any event contemplate that its award may be annulled or denied enforcement for excess of authority, but possibly also annulled at the seat if it denies effect to the seat’s own mandatory law.

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