"Approaches to mandatory rules in international arbitration" [2019] ELECD 2869; in Fazilatfar, Hossein (ed), "Overriding Mandatory Rules in International Commercial Arbitration" (Edward Elgar Publishing, 2019) 148

Book Title: Overriding Mandatory Rules in International Commercial Arbitration

Editor(s): Fazilatfar, Hossein

Publisher: Edward Elgar Publishing

Section: Chapter 5

Section Title: Approaches to mandatory rules in international arbitration

Number of pages: 30

Abstract/Description:

One issue with mandatory laws – which remains the subject of much controversy in arbitration – is what if the applicable mandatory laws conflict with one another and each call for a different solution. Basically, what is the arbitrator facing that dilemma to do? Prior to providing any suggestions for this problem, this chapter explores the various approaches to mandatory rules in international arbitration, including the foundation underlying such approaches and the provided solutions circulated in academia and in practice. Later, it is suggested that when there is a conflict between the applicable mandatory laws, the arbitrator may: (a) apply dépeçage to the transaction; (b) find a compromise between the solutions provided under the applicable mandatory laws; or (c) if the parties are cooperative, mediate between the parties and apply a law that suits both parties’ transactional concerns as well as the enforcement concerns of the arbitrator.