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18 American Review of International Arbitration 21 (2008)


For all the scholarly attention paid to the role of mandatory rules in civil litigation, the doctrine regarding their use has never been fully developed. Certainly courts considering contracts governed by foreign law will sometimes override that law, applying a mandatory rule of the forum in its place. But in its most expansive articulation, the "mandatory rules" theory would also permit courts in certain circumstances to apply the mandatory law of a third country - a direction in which courts have declined to go. This article examines one of the justifications forwarded by early proponents of this more expansive approach: that ready application of foreign law would promote a form of judicial comity, effectuating the important interests of other nations. It inquires whether the international litigation climate today - in the age of globalization - might be hospitable to further development of the doctrine as a tool of judicial cooperation. It concludes that in fact the current trend is toward a contraction, not an expansion, of the doctrine, in part because forum courts increasingly forego application of even their own mandatory law in favor of party-chosen law. It suggests that arguments favoring broader application of foreign mandatory rules may be inextricably tied to political imperatives and to a base level of substantive similarity between the forum and foreign policies in question, and that for these reasons as well the doctrine will remain limited in scope.