An
international arbitrator can be faced with a conflict between a specific
contractual clause, and a provision of the law chosen by the parties which,
under such law, is meant to be mandatory. In such a situation,
the arbitrator has little reason to allow mechanically the mandatory rule to
prevail: in general, no specific norm is imposed upon him, nor are there
theoretical considerations which would prevent him from giving primacy to the
specific substantive clause. In such circumstances, a natural approach for the
arbitrator would be to determine the true meaning of the parties’ intention.
This should lead him to favour, at least in certain cases, compliance with the
clause which may be inconsistent with a mandatory provision of the law chosen
by the parties. It is nevertheless necessary to take into account the situation
where this provision ought to be treated as an internationally imperative norm,
which as such could not be voluntarily excluded by the parties.