Hossein Fazilatfar, Overriding Mandatory Rules in International Commercial Arbitration
| DOI | 10.3366/elr.2020.0666 |
| Published date | 01 September 2020 |
| Date | 01 September 2020 |
| Pages | 452-453 |
| Author |
Public policy, and its reflection in overriding mandatory rules, has been a long-discussed hurdle in the international arbitration community, and it still represents a puzzle for even experienced arbitrators and academics. This book leads the reader through five chapters of a well-thought-out perspective on the application of overriding mandatory rules in international commercial arbitration.
The definition of overriding mandatory rules has long been discussed back-to-back with the notion of public policy. It is not an easy job to offer a solid definition of either of these terms; however, the author's attempted definition in chapter one is concise and supported by a thorough overview of legal sources and authorities. The leitmotiv of the pursuit of the definition of overriding mandatory rules is that the definition of these rules is underpinned by the notion of public policy, even though the mandatory rules have, over time, emerged as a separate legal institution from public policy (26). This separation or “emancipation” is, however, respected to the extent of using “the Shield and the Sword” metaphor to depict the negative and the positive manner of the operation of public policy and mandatory norms respectively (28–29). The assertive nature of mandatory rules stems from the definition that is provided, according to which these are “provisions with an imperative nature, thus directly applicable within their sphere of application, irrespective of the chosen law governing parties’ commercial relationship” (21).
When discussing the definition of public policy, the...
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