engleski

Significance of mandatory rules in international commercial arbitration

One of the main features of the modern world is the "unprecedented transnational mobility" of people and businesses. Besides its obvious advantages from the point of view of economic growth, clash of cultures, legal and societal, it often leads to conflicts. generally speaking, there are two different groups of conflicts. First is dominated by state interests and the state itself has an interest in the outcome of such cases. Traditionally, they were within the exclusive domain of courts. However, it is beyond doubt that some of them are arbitral today. The other gorup is dominated by private interests so, consequently, private parties are allowed to decide who is going to resolve their conflict and how. With regard to "who", arbitration has undoubtedly become the preferred dispute settlement method. There are some indications that almost 90% of international commercial contracts include an arbitration clause. With regard to "how", party autonomy represents a cornerstone in cross-border commercial transactions. Thus, parties are also allowed to designate the applicable law in the case of a dispute. Sometimes, the parties will even opt for a tandem (combination of choice of law and choice of (arbitral) forum). Since the incentive for opting for arbitration may be, and sometimes is, the parties' interest to avoid the application of certain mandatory rules, question is to whom should the arbitrator give priority, to the state and its interests or the parties and their expectations? Is it an arbitrator's duty to apply mandatory rules? What are the consequences of their ignorance? The intention of this paper is to present the complexity of arguments and to offer some conclusions.

arbitration, party autonomy, mandatory rules, internationally (overriding) mandatory rules

nije evidentirano