Applicable Law to Merits in International Arbitration and its Relation with Mandatory Rules and Public Policy
Publication in policy or professional journal

CUHK Authors
Author(s) no longer affiliated with CUHK


Full Text

Other information
AbstractThe aim of every judicial process is to reach a just, fair, and reasonable decision; as Radin has pointed out, ‘The goal of the law has for many centuries been declared to be justice’.1 Therefore, arbitration, as an alternative to state courts, should also be related to justice. This study examines the applicable law in international arbitration, and how it interacts with mandatory rules and public policy. This research asks two questions: `What laws can be chosen in international arbitration to govern the merits of the case (?)` and `What mandatory rules can restrict the law chosen by parties and that is applicable to the substance (?)`. This issue is important because mandatory rules and public policy can restrict the autonomy that parties enjoy in arbitration, and restrict the choice of parties regarding the applicable law to the merits of the case. Through first examining the changing attitudes over time towards arbitration as a dispute settlement mechanism, this work identifies in which direction arbitration is going. This paper suggests that the discretion given by the New York Convention to the courts of the place of enforcement should be used with a mind-set to create a truly international system. This will ensure international justice. This study advances our understanding of international arbitration as a part of the international legal order and as its natural result, suggests that the only applicable mandatory rules in international arbitration should be transnational mandatory rules.
All Author(s) ListCan EKEN
Journal nameYoung Arbitration Review
Year2018
Month1
Volume NumberEdition 28
PublisherYoung Arbitration Review
Pages52 - 64
LanguagesEnglish-United States

Last updated on 2020-06-05 at 15:27