Author: Hannah L. Buxbaum*
Published: April 2008
Dispute Resolution and Litigation
The role of mandatory rules in civil litigation is an issue that has excited much attention in the private international law academy. It presents the sort of taxonomical challenge that conflicts scholars enjoy – which rules, precisely, should be defined as mandatory? – and resulting efforts have yielded many competing definitions and systems of classification. In addition, theories about how to characterize the operation of mandatory rules, focusing on whether they work within usual choice-of-law processes or rather outside them, intersect with important debates about the nature and limits of private international law itself. Yet for all that attention, it is not clear that a fully realized doctrine of mandatory rules has emerged. Work on mandatory rules begins with a somewhat mundane observation: forum courts considering contracts governed by foreign law will sometimes override that law, applying a rule of forum law in its place. Such action is the usual outcome, for instance, in cases presenting a conflict between foreign lex contractus and a forum law that protects an important public policy. A court is well positioned to determine whether its own country’s law demands application to the transaction in question, and, as an organ of the enacting state, clearly has the authority to apply that law. Indeed, the forum court may be required to apply it. Thus, the general proposition that party autonomy may yield to certain laws of the forum is uncontroversial, and the doctrine of mandatory rules, to the extent that it simply reflects and explicates this reality, unobjectionable.
This starting point, however, has been used as the foundation for the articulation of a more robust doctrine that would permit courts, in certain circumstances, to apply not only the mandatory law of the forum, but also the mandatory law of other countries connected with the transaction in question. The justification for such a doctrine lies in perceptions of the appropriate role for courts in addressing international disputes. In its fullest form, the doctrine supports two different aspects of that role. First, vesting courts with broad authority to apply foreign law recognizes their ability to correct for imbalances in the bargaining process. Ian Fletcher, for example, noted that…
*Associate Dean for Research and Professor of Law, Indiana University School of Law – Bloomington.