International Interpretations and Applications of Public Policy Under the New York Convention
In recent decades, arbitration of international commercial disputes has increased and is likely to continue to grow. Many businesses prefer arbitration to litigation in court because of its relative promptness, privacy and economy. However, in some instances, arbitration requires the support of national courts to be effective when arbitral awards are not satisfied through voluntary compliance of the parties. The most important convention seeking to regulate enforcement of arbitral awards is the New York Convention. The primary goal of the Convention is to make it easier for parties to recognize and enforce arbitral awards around the world. While requiring contracting countries to recognize and enforce arbitral awards, the New York Convention sets forth enumerated grounds upon which a court may refuse to enforce them. It dictates that recognition or enforcement may be refused only for a restricted number of clearly defined defenses, related to procedural fairness and public policy. Among these defenses, the public policy exception is most frequently invoked and has also become one of the most controversial grounds for refusing to enforce arbitral awards. This paper will examine the international conventions that govern international commercial arbitration, and analyze the problems that arise when parties use the court system to enforce arbitration awards. It will look specifically at whether the public policy defense is so vague that it fails to provide the uniform interpretation and application needed to guide national courts in reviewing the enforceability of an international arbitration award, and will propose helpful modifications. The individual chapters will narrow this focus by providing an overview of the public policy exception, followed by an assessment of existing international arbitration law, both substantive and procedural, followed by a partial inventory of the interpretive variations and case law considering the public policy exception, and ultimately a discussion of applicability and enforceability issues.