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Legal certainty, proportionality and pragmatism: overriding mandatory laws in international arbitration

Kleinheisterkamp, Jan (2018) Legal certainty, proportionality and pragmatism: overriding mandatory laws in international arbitration. International and Comparative Law Quarterly. ISSN 0020-5893

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Identification Number: 10.1017/S0020589318000295

Abstract

Overriding mandatory laws present one of the most pervasive and delicate problems of international arbitration because these laws affect party autonomy in both its substantive and procedural dimension. The tension between these concepts both in theory and in practice is a classic emanation of the public-private divide, which is particularly problematic in international and transnational settings. This tension is all the stronger in the context of economic integration and regulation, such as in the EU Internal Market. This article revisits and conceptualizes the operation of overriding mandatory laws in the context of arbitration from the perspectives of conflict of laws, public law, and EU law. Drawing on the principles of effectiveness and proportionality, it proposes a practical rather than a theoretical solution to the dialectic relationship between private and public interests in legal certainty.

Item Type: Article
Official URL: https://www.cambridge.org/core/journals/internatio...
Additional Information: © 2018 Cambridge University Press
Divisions: Law
Subjects: K Law > K Law (General)
Sets: Departments > Law
Date Deposited: 19 Jun 2018 15:04
Last Modified: 20 Nov 2019 05:39
URI: http://eprints.lse.ac.uk/id/eprint/88377

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