Author: Loukas Mistelis*
Published: April 2008
Description: Few legal issues ignite such major debates amongst lawyers as the issue of mandatory rules of law. Most relevant questions, including notion, relevance and applicability are not settled and there is certainly a lack of fruitful communication between scholars and practitioners.
Columbia Law School and the School of International Arbitration at Queen Mary University of Law organized this workshop among a relatively small number of academics and arbitration practitioners and explored the role and significance of mandatory rules of law in the theory and practice of international arbitration. The issue bears on a range of matters, including the potential for parties to evade the impact of otherwise mandatory rules of law through resort to arbitration, the difficulty of identifying the sources of mandatory rules of law, the methods of determining mandatory rules relevant to arbitral proceedings and the practical consequences of the non-application by arbitral tribunals of mandatory rules of law. The workshop also explored mandatory rules in the context of international investment arbitration.
In the next few pages some observations will be organized into three parts: first, there will be a discussion of mandatory rules in context, looking at their evolution as a concept and the current state of affairs; second, attention is turned to the preceding papers which were generated on the basis of the workshop; finally, the focus will be on issues which remain unresolved.
*Clive M Schmitthoff Professor of Transnational Commercial Law and Arbitration and Director, School of International Arbitration, Centre for Commercial Law Studies, Queen Mary University of London.