Public-Private distinction and the dilemma of mandatory laws: an ICSID perspectiveSSRN (2012)
AbstractThe approach of legal systems towards private arbitration in public-nature disputes usually face with a certain mistrust or suspicion that somehow have been linked to the uncertainty as to the matter of arbitrability of these issues. During the time this mistrust goes to be faded away but, however, the matter of how this kind of arbitration shall be treated remains a challenging issue in international sphere. Among others, a prominent issue in this regard is consideration of mandatory rules of law in arbitration proceeding, either in form of applicable substantive law or in determination of jurisdiction. The aim of this article is to consider and analyze the interaction between international arbitration and mandatory rules of law in the light of international center for settlement of investment disputes (ICSID) rules and precedence. In doing so, this article after analyzing function and structure of ICSID arbitration system from a public-private perspective seeks to find how mandatory rules have been dealt in ICSID precedence in respect of application on merits of the dispute and then how the conflict raised between different mandatory norms have been resolved by arbitral tribunals. The basic and profound different conclusions in ICSID awards invoked, however, suggest for defining a new contract v treaty based basis in which both the ICSID precedence could be justified and the compliance with investment legal order and parties expectations in an investment relation would be satisfied.
- Mandatory rules of law,
- International investment arbitration,
- Public policy.
Citation InformationSeyed Mohammad Tabatabaei Nejad. "Public-Private distinction and the dilemma of mandatory laws: an ICSID perspective" SSRN (2012)
Available at: http://works.bepress.com/mohammad_tabatabaeinejad/1/