Abstract

This book is an attempt to trace the legal implications of the application and interpretation of the doctrine of public policy as a ground for refusing to enforce arbitral awards in international commercial arbitration. This requires an analysis of the extent to which public policy can be a proper defence against the enforcement of foreign awards. In this respect, Article V (2)(b) of the New York Convention is particularly important. The distinction which is being examined throughout this book is that between applying domestic or international public policy rules as grounds for refusing to enforce a foreign arbitral award.

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This book is divided into six chapters.

Chapter One provides a general overview of the subject, and a background study of the source and nature of arbitral awards. This includes highlighting the differences between national and foreign arbitral awards and the means available for executing them, or resisting their enforcement.

Chapter Two examines the nature and characteristics of the notion of public policy. It also deals with the role of public policy in private international law as a ground for excluding the normally applicable law or for refusing to recognise or enforce an otherwise enforceable foreign judgement and arbitral awards. The main object of this Chapter is to illustrate the influence of public policy rules on the functioning of conflict of laws rules.

Chapter Three examines the proper procedural and substantive law that should be applied in international commercial arbitration, and deals with the duty of arbitrators to determine the applicable public policy rules as part of their duty to provide the parties with an enforceable arbitral award. It is argued that when conflict between domestic and international public policy rules occurs during the arbitration proceedings, arbitrators must comply with the international public policy rules as the most proper rules to govern in international commercial arbitration.

Chapter Four examines in detail the supervisory powers of the courts in the country of origin over international arbitral awards and the applicable public policy rules. The effect of setting aside an international arbitral award for considerations of public policy in the country of origin, on enforcement in other co

untries pursuant to Article V (1)(e) of the New York Convention will be examined. Chapters Five and Six seek to analyse key cases that have arisen before the courts in regard to the application of public policy as a ground to refuse enforcement of foreign arbitral awards. A number of aspects will be examined which mainly relate to procedural public policy rules and issues concerning the subject matter of the dispute. Evidence will be found to support the argument that the notion of ‘international public policy’ is becoming increasingly recognised by courts as a basis for interpreting Article V (2)(b) of the New York Convention.