A Study On The Application Of Mandatory Rules Of Law In International Commercial Arbitration

Nowadays, states' goal to regulate more and more purely private legal relationships to pursue economic and social public interests of the community has led to an increase in "Interventionist Rules" in the form of mandatory rules. More and more legal relationships that are contractual in nature have been impinged by those rules. Those rules, which are most frequently mentioned in the following, may be competition laws, currency controls, and measures of embargo, blockade, or boycott. There is great uncertainty in the international world of arbitration about the role of mandatory rules in international commercial disputes, for neither international treaties dealing with arbitration nor comprehensive modern national laws contain the slightest provision with respect to the relationship between mandatory rules of law and the arbitral process. In addition, academic research is quite scarce. Using national legislation and international treaties for reference, this dissertation aims to explore general rules with respect to the application of mandatory rules of law through scrutiny of diverse arbitral practices and related theories. It is expected that this research will to some extent supply certain guidelines and enhance the foreseeablity and stability of the resolution of international business disputes.This dissertation comprises 4 chapters, totaling nearly 45,000 words.Chapter 1 deals with the summary of mandatory rules of law. The foremost issue in this dissertation is about the definition of mandatory rules of law, which refers to an imperative provision of law which must be applied to an international relationship irrespective of the law that governs that relationship. On this basis, the relationship between mandatory rules and public policy has also been speculated. Then this dissertation introduces relevant provisions on mandatory rules of law stipulated in national private international laws and international treaties, which are designed mainly for the purpose of court litigation and bear great significance to international commercial arbitration.Chapter 2 firstly presents an analysis with respect to the competence enjoyed by arbitrators in the application of mandatory rules of law. In addition to those arise out of the arbitral agreement, the author holds the view that the role of arbitrator in international business transaction, and also in the whole international commercial arbitration institution shall be considered. But such considerations cannot go too far to view the application of mandatory rules of law as a duty imposed on arbitrators, except for the purpose of the protection of truly or transnational public policy. Then the dissertation continues to supply an analysis on the issue of arbitrability of disputes involving mandatory rules of law from certain perspectives, such as national judicial practices, statutory claims, public policy and philosophy of law.Chapter 3 presents a positive and theoretical analysis on the application of mandatory rules of law in the background of international commercial arbitration. The first section focuses on theories that can be used to guide the application of mandatory rules of law, and mainlyon the theory of Special Connectioa By reference to international commercial arbitral practices and distinguishing mandatory rules of law of the lex contractus from those foreign to the lex contractus, the second section explores the general rules for the application of mandatory rules of law in specific cases. The third section relates to the judicial supervision of arbitral awards, which in the context of this dissertation closely connected with the issue of arbitrablity. By reference to national judicial practices, "the second look doctrine " and also "manifestly disregard of law "theory, the author holds the view that attention must be paid to avoid excessive exercise of judicial power on arbitral awards.Chapter 4 concerns "the impact of mandatory rules of law in China legal system on international commercial arbitration". Through analysis on the issue of ar...