"Foreword" [2019] ELECD 2860; in Fazilatfar, Hossein (ed), "Overriding Mandatory Rules in International Commercial Arbitration" (Edward Elgar Publishing, 2019) vi

Book Title: Overriding Mandatory Rules in International Commercial Arbitration

Editor(s): Fazilatfar, Hossein

Publisher: Edward Elgar Publishing

Section Title: Foreword

Number of pages: 2

Extract:

Foreword
Resort to arbitration, rather than litigation, has increased considerably in recent
years. Even in consumer transactions, particularly in the United States, stipu-
lations limiting dispute resolution to "private arbitration," thereby precluding
any kind of litigation (including by class action), have become pervasive.
The effect of "mandatory rules" of the law of the forum or perhaps also of a
third State on the otherwise applicable law in international arbitration or litiga-
tion is not a new question. It has concerned courts, arbitrators, and commenta-
tors for decades. What gives this problem new currency for all types of dispute
resolution is a combination of factors: increased deference to party autonomy
in their choice of arenas for the resolution of their disputes (courts or arbitral
tribunals), and the same with regard to the parties' choice of the applicable
law, with both of the foregoing contrasted by public regulation in all countries
in such matters as competition, investment, corporate responsibility, consumer
protection, and environmental preservation, to mention only the most obvious.
Initial questions are: what are "mandatory rules of law" and how do they
differ from the classic ordre public exception? Are there different kinds of
mandatory rules, for instance in light of the European Union's adoption of the
concept of "overriding mandatory rules"? Are issues covered by mandatory
rules even justiciable or arbitrable? And, of course, what is the effect of a
decision ignoring a mandatory rule of the State in which enforcement of the
award is sought?
Courts choose the ...