Contemporary Challenges and Continuing Relevance
Edited by Franco Ferrari and Diego P. Fernández Arroyo
Chapter 17: Private international law in international arbitration
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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