Desordre Public International under the New York Convention: Wither Truly International Public Policy

Abstract

Much confusion has revolved around the nature of the public policy defense under Article V(2)(b) of United Nations Convention on the Recognition and Enforcement of Arbitral Awards (the New York Convention) to the point that the French term for public policy, ordre public, ought to be changed to desordre public to reflect the general disorder in the discourse on this particular subject. This article takes an in-depth look at the public policy defense and challenges the notion that enforcement States are obliged to consider supranational public policy when deciding whether to recognize or enforce an international arbitral award, except in only a few cases where certain regional obligations are involved. Even then, this is not the type of truly international public policy that is advocated by numerous commentators. Nonetheless, States are free to rely on truly international public policy when deciding on enforcement. Despite the perceived benefits to relying on truly international public policy, there are significant reasons to refrain from pushing for such reliance. While reliance on truly international public policy may help mitigate some of the adverse side effects associated with globalization, it is important to ask what is the price we are willing to pay to counter these side effects. The price should not be the emasculation of the New York Convention itself.