Skip to main content Accessibility help
×
Hostname: page-component-7479d7b7d-pfhbr Total loading time: 0 Render date: 2024-07-14T11:18:49.001Z Has data issue: false hasContentIssue false

21 - Mandatory Law: International Commercial and Investment Treaty Arbitration

from Part IV - Applicable Law

Published online by Cambridge University Press:  18 February 2023

Stefan Kröll
Affiliation:
Bucerius Law School, Rechsanwalt Kröll
Andrea K. Bjorklund
Affiliation:
McGill University, Montréal
Franco Ferrari
Affiliation:
New York University
Get access

Summary

This Chapter addresses how unexpected restrictions in municipal laws might frustrate parties’ autonomy by the application of “mandatory laws” that do not constitute fundamental principles of morality and justice. The Chapter analyses the definition of “mandatory law” and concludes that international commercial arbitration tribunals must follow the combined guidance of the ILA Final Report, with its emphasis on identification of “mandatory laws” as lois de police, and Article 9 of Rome I, with its limitation on applying only “overriding” mandatory laws – particularly when the allegedly mandatory laws of a third State are in question.

The Chapter also examines investment treaty disputes, where the application of mandatory laws of third States is less likely to be involved. However, treaty arbitrators are arguably in need of guidance from States and investors – perhaps as a prudential limit to arbitrators’ discretion – in assessing which of the increasing number of human rights provisions should be considered “mandatory law”.ICJ Judge Bruno Simma’s proposal regarding pre-investment “audits” of the law of the host State in relation to human rights is one way to provide such guidance. Absent guidance, uncertainties about the content of “international law” may well create uncertainties about “mandatory law” in investment treaty cases, to the detriment of ongoing public confidence in investor-State dispute resolution.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2023

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×