تجاوز القواعد القانونية الإلزامية في التحكيم الدولي : دراسة تحليلية

الملخص EN

Overcoming the mandatory legal rules represents one of the most widespread and sensitive problems of arbitration because it affects the independence of the parties in its substantive and procedural dimensions.

The problems between these concepts, from the theoretical and practical perspectives, is a natural result of the different legal systems regulating international trade matters.

This reinforced the gap and intersection between the legal systems regulating the public and private sectors.

Because mandatory rules are increasing in countries where the public sector is active, which is particularly problematic in international circles.

The problem arises when national courts refuse to enforce arbitration clauses, because this may allow the parties to evade the mandatory rules.

On the other hand, these practices of the national courts had received great criticism under the pretext of disrespecting the independence of the parties and undermining confidence in the entire arbitration process.

In fact, the efficiency of international commercial transactions depends mainly on trust in the arbitration process.

In addition, in the practice of arbitration, the parties concerned are concerned that mandatory legal rules could act as an obstacle to arbitration.

This dialectical relationship between private and public interests can compromise legal certainty.

Therefore, this research will shed light on the process of freezing mandatory legal rules in the context of arbitration from the perspective of national courts.

Drawing on the principles of agency and proportionality, which proposes a practical, rather than a theoretical solution to the dialectical relationship between private and public interests.