In practice, there are several obstacles to the application of the substantive legal framework analysed in the previous chapters. First, there is a risk of contractual provisions that deviate from the legal norm. The qualification of certain rules as mandatory law may prevent such contractual deviation. Even so, effective recourse to the protective regimes throughout the course of the contract is not guaranteed. Reference may be made to the possibility for corporate partners to have recourse to trade secret protection and the apparent limited invocation of the protective legal framework. Collective enforcement may contribute to enhanced transparency throughout the music value chain and counter musicians’ fear of commercial retaliation. Further bolstering extra-judicial enforcement is likely to fulfil an important complementary role.

This Chapter addresses how unexpected restrictions in municipal laws might frustrate parties’ autonomy by the application of “mandatory laws” that do not constitute fundamental principles of morality and justice. The Chapter analyses the definition of “mandatory law” and concludes that international commercial arbitration tribunals must follow the combined guidance of the ILA Final Report, with its emphasis on identification of “mandatory laws” as lois de police, and Article 9 of Rome I, with its limitation on applying only “overriding” mandatory laws – particularly when the allegedly mandatory laws of a third State are in question.

The Chapter also examines investment treaty disputes, where the application of mandatory laws of third States is less likely to be involved. However, treaty arbitrators are arguably in need of guidance from States and investors – perhaps as a prudential limit to arbitrators’ discretion – in assessing which of the increasing number of human rights provisions should be considered “mandatory law”.ICJ Judge Bruno Simma’s proposal regarding pre-investment “audits” of the law of the host State in relation to human rights is one way to provide such guidance. Absent guidance, uncertainties about the content of “international law” may well create uncertainties about “mandatory law” in investment treaty cases, to the detriment of ongoing public confidence in investor-State dispute resolution.

The right to arbitration is not absolute. The state is entitled to place restrictions on the arbitral process. This chapter discusses some important norms regarding impartiality, fairness, discrimination, substantive norms, reason-giving, and judicial review of awards. An important issue concerns the need for the state to ensure the reliability of arbitration when mandatory law is at stake or when consumer and employment controversies are arbitrated. A related problem arises when arbitrators confront legislation that is arguably inconsistent with the Constitution or with supranational law (such as European Union law). What should arbitrators when they believe the applicable legislation is not in conformity with higher law?