The Application Of Mandatory Rules In International Commercial Arbitration

Nowadays international commercial arbitration is gaining its popularity as a mechanism of dispute resolution.Among all of the merits which international commercial arbitration has,enforceability around the world according to New York Convention and legislation of most states on arbitration is the foremost attraction to private parties.The pro-arbitration policy underlying national legislation and juridical practice makes it better choice for commercial participants to summit their disputes to arbitration rather than judicial adjudication.Nevertheless,arbitral awards are still subject to judicial review.If an interim or final award does not satisfy the certain qualifications stipulated in an given national arbitration law or the Convention,its validity or enforceability will be rejected.In international commercial arbitration,along with the violation of due process,arbitrability or public policy as grounds for refusing to recognize and enforce an arbitral award,mandatory rules also play an important part in the process of determining the effect of an arbitral award.Whether the arbitral tribunal duly and reasonably applies mandatory law or mandatory rules of the law applicable to the disputes,will influence the validity of an arbitration agreement,of the arbitration procedures,and of the enforceability of an arbitral award.To discuss and analyze the application of mandatory rules in international commercial arbitration,this paper includes four chapters.Part ?,the definition of mandatory rules in private international law,and the introduction of the Mitsubishi case in the United States to illustrate whether it is necessary for the arbitral tribunal to consider and to apply the mandatory rules of the applicable law.The Supreme Court's judgment helps us to reach a safe conclusion that the violation of mandatory rules does not necessarily lead to the arbitration award's refusal for being against the local public policy.Part ?,the application of mandatory rules in the determination of the validity of an arbitration agreement,of the law applicable to the arbitration proceedings and to substantive issues in dispute,and the determination of the enforceability of an arbitral award.The governing law can be chosen by the parties,or in the absence of express choice by the parties,it can be determined by the arbitral tribunal.Among the limited defenses to challenge an arbitral award,arbitrability of a subject matter and public policy are those closely connected with mandatory rules.Mandatory rules in national laws embody the local fundamental principles of law,economic,social and political policy,which underlie the stipulation on arbitrability,and the most basic notion of justice and principles of law comprise the local public policy.Part ?,the application of mandatory rules in our country's legislation and judicial practice,mainly about the Supreme Court's judgments on the issue of the applicable law to the arbitration agreement,the impact of mandatory rules on the enforcement of foreign arbitral awards.The violation of administrative mandatory rules cannot render an arbitral award unenforceable for being against the local public policy.Part ?,conclusion of this paper on the application of the application of mandatory rules.