Originally from World Arbitration And Mediation Review (WAMR)

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COMMENT: MANDATORY LAW AND THE ENFORCEABILITY OF ARBITRATION AGREEMENTS

Alan Scott Rau*

I. INTRODUTION Professor Kleinheisterkamp’s interesting and provocative paper focuses on the effect of “internationally mandatory rules,” and so I think we should at the outset be quite clear with respect to what we understand by this phrase. I take it that this phrase is meant to suggest – not what I understand the cognoscenti refer to as “jus cogens”– but merely to suggest something like, “imperative local rules which must be applied despite party agreement, and which are considered sufficiently central to the fundamental concepts of the local legal system that they must be applied despite the greater leeway that may otherwise be given to choices of law in an ‘international transaction.’”

None of this changes the fact that the local rule in question may actually at bottom be quite parochial: I had, for example, understood the Belgian legislation that is the centerpiece of so much of his discussion to be the paradigmatic example of local protectionist legislation, responsive to the demands of particularly attractive, politically influential weaker Belgian parties.1 Evocation of the supposed benefits to “the good functioning of the internal market”2 must inevitably strike us as window dressing. The “European logic” may indeed be that “protecting commercial agents benefits also their principals” – but