Description
Book SynopsisArbitrators, unlike judges, are appointed by parties to resolve their transactional disputes. Because of such contractual appointment, arbitrators gain their authority from the parties, and thus must apply the law chosen by the parties to the dispute before them. However, there are overriding mandatory laws of other jurisdictions, that due to their imperative character may claim application to the dispute. The arbitrator, as a private adjudicator, has a duty to resolve a potential conflict that may arise between the law chosen by the parties and another mandatory law(s) that claims application and is not chosen by the parties.
Overriding Mandatory Rules in International Commercial Arbitration discusses the applicability of mandatory rules of law in international commercial arbitration and addresses the concerns of the arbitrators and judges at various stages of arbitration and the recognition and enforcement of the award respectively.
Legal scholars researching the law applicable in international commercial arbitration will find the answers they require within these pages, as will students. It will also prove helpful to practitioners, including arbitrators, judges and attorneys, as they deal with mandatory rules in practice.
Trade Review'Hossein Fazilatfar's treatise deftly navigates a complex and enduring problematique of international arbitration scholarship and practice - how to reconcile the parties' contractual bargain regarding choice-of-law with due consideration of imperative substantive rules while delivering an arbitral award that is minimally exposed to challenge or set aside claims. In doing so, he adds invaluable structure and methodology to the ''unruly horse'' of public policy/ mandatory law, deliberations about which have grown in number and complexity over the years. His book reminds us of the responsibility that arbitrators bear when addressing this problematique on a case-by-case basis, and the sophistication required to do so. Fazilatfar's insightful solutions and critiques enlarge the analytical toolkit available to arbitrators, as well as to practitioners, students and the academy, to discharge that responsibility.' --Gary Born, Wilmer Cutler Pickering Hale and Dorr LLP and author of
International Commercial Arbitration'To say that Hossein Fazilatfar's work on mandatory law in international arbitration is a major contribution to the literature is a vast understatement. No aspect of this complex subject escapes Fazilatfar's attention, and no prior writing on it fails to be valorized. Nor has anyone assembled all of this thinking in so clear, coherent and convincing a way. All who are interested in international arbitration, whatever the functions they perform, owe it to themselves to read this book and reflect on the insights with which it is replete.'
--George A. Bermann, Columbia Law School, US
Table of ContentsContents: Foreword Preface 1. Public policy and mandatory rules of law: definition, distinction, and function 2. Arbitrability of overriding mandatory rules 3. The role of overriding mandatory rules before arbitration tribunals 4. Overriding mandatory rules and the judicial review of international arbitral awards 5. Approaches to mandatory rules in international arbitration Index
