Some authors argue that the applicability or otherwise of peremptory norms of the lex contractus depends essentially on the intention of the parties. It is therefore first and foremost a question of interpreting the choice of law clause contained in the Treaty. Thus, Born argues that a choice of law clause according to which the contract `shall be interpreted in accordance with the law of State X` does not, in principle, cover non-contractual mandatory provisions. [78] It reaches the same conclusion with respect to a broader (standard) choice of law clause according to which „[t]he contract is governed by the law of State X“ and argues that non-contractual mandatory provisions (they explicitly mention competition law, commercial controls and intellectual property rules) would not in principle fall within the scope of such a clause. [79] The application of the internal conflict rules of the seat (or of another country) is likely to conflict with the well-established principles of party autonomy and arbitration discretion. With regard to the first principle, it should be noted that national conflict-of-laws rules in matters of contract generally do not allow parties to opt for foreign law. For example, the Rome I Regulation recognises the principle of autonomy of choice of applicable law, which allows contracting parties to freely choose the applicable law. [52] However, as suggested by the wording used in the relevant provision (the parties are free to choose the „law“ governing the contract), the parties must choose a specific national law, i.e. they cannot choose non-national rules. [53] While most researchers provide little or no justification for the application of the mandatory rules of lex contractus, those who do offer one of two explanations. [67] One explanation is that the applicable law (and this is not necessarily limited to the lex contractus, but also applies to other areas) extends in principle in law to all provisions of the relevant legal system, including its mandatory rules.
The alternative explanation emphasizes the will of the parties and postulates that the application of the mandatory rules of the lex contractus depends on that intention and, in particular, on the wording of the choice of law provision contained in the contract (if any). The incompatibility of national conflict-of-laws rules with the principles of party choice of law autonomy and arbitration discretion is not only a formal problem; it affects the essence of the interests of the parties. In fact, the principles in question were not developed by chance or without reason; Rather, they serve specific underlying purposes. The possibility for parties to choose a non-national law (such as general principles of law, UNIDROIT principles of international commercial contracts or common rules of the parties` respective legal systems) is intended to address perceived gaps in domestic law and to enable parties to choose rules that they consider neutral and/or balanced. [58] The discretion to choose the arbitral tribunal has evolved in response to the perceived rigidity and ambiguity of internal conflict rules and is intended to promote fairness and predictability in decisions on the choice of arbitration. [59] The achievement of these two objectives would be undermined if arbitral tribunals were to apply the conflict-of-laws rules of the seat (or other conflicting domestic rules). 3 See, for example, Mayer, P, „Mandatory Rules in International Arbitration“ (1986) 2(4) Arbitration International 274CrossRefGoogle Scholar; LG Radicati di Brozolo, „Globalization, jurisdiction, arbitration: towards rules of semi-necessary application?“ (2003) Revue critique de droit international privé 1; Brozolo, LG Radicati di, „Arbitration and Competition Law: The Position of Courts and Arbitrators“ (2011) 27 (1) International Arbitration 1CrossRefGoogle Scholar; Kleinheisterkamp, J, „The Impact of International Mandatory Laws on the Enforceability of Arbitration Agreements“ (2009) 3(2) World Arbitration & Mediation Review 91Google Scholar. A very similar rule is found in the 1980 Rome Convention.
Article 7 provides that „where, under this Convention, they apply the law of one State, mandatory provisions of the law of another State with which the facts are closely connected may be applied“. Like art. 19 para. 1 Swiss PILA, this provision can be understood as meaning that the mandatory provisions of the lex contractus are necessarily applicable. Such a semi-official commentary on the Convention, the famous Guiliano-Lagarde report, also supports such an interpretation. [23] In their commentary, the authors explain that Article 7 of the Convention reflects the „established principle that national courts may, under certain conditions, give effect to mandatory rules other than those applicable to the contract“[24], which makes it clear that the mandatory provisions of the lex contractus are applicable as such. Indeed, the crucial question – which makes the analysis so complex and controversial – is whether, or under what circumstances, certain mandatory rules applicable on their own terms should or should be applied by state or arbitral tribunals (i.e. their „external“ applicability).
90 Mitsubishi Motors Corp v Soler Chrysler-Plymouth 473 U.S. 614 (1985), at p. 638: „After the arbitration is admitted, U.S. domestic courts will have an opportunity, at the enforcement stage of arbitral awards, to ensure that the legitimate interest in antitrust enforcement is taken into account.“ The purpose of this article is not to repeat any of these points of consistency. Rather, it aims to contribute to academic debate by addressing controversial or unresolved issues and highlighting common misunderstandings. In particular, this study examines (a) the still controversial question of whether arbitral tribunals having to apply certain mandatory rules should have recourse to the conflict-of-laws rules of the seat, (b) the widespread but imprecise view that arbitral tribunals must necessarily apply the mandatory rules of lex contractus, and (c) the legal scope of territorial application of overriding mandatory rules, A subject often overlooked by commentators. [12] [38] This terminology is often used by authors of common law systems.
Komentari su zatvoreni.