Disputes concerning public order and their arbitrability: A comparative study

The reason for writing this article was the adoption in 2020 of the Law of the Russian Federation on Amendments to the Constitution of the Russian Federation, which amended Article 125 of the Constitution of the Russian Federation, concerning the enshrinement at the constitutional level of the term “fundamentals of public law and order”. In this regard, the article addresses such issues of the institution of public order as the absolute uncertainty of the term, the lack of uniformity in judicial practice and the increasingly broad interpretation of the concept of “public order”. As a result, it is concluded that the term “fundamentals of public order” is more acceptable, since what is referred to as public order in judicial practice actually constitutes its foundations (principles of Russian law, morality and ethics, etc.), an opinion is expressed about the need to unify terminology, using constitutional terms in sectoral legislation, as well as the need for constitutional enshrinement of the protection of public order as a general principle, while it is necessary to limit the “scope” for judicial discretion by enshrining the concept of public order and its foundations at the legislative level, since the institution of public order is of fundamental importance and its interpretation should not be unlimited.

The reason for writing this article was the adoption in 2020 of the Law of the Russian Federation on Amendments to the Constitution of the Russian Federation, which amended Article 125 of the Constitution of the Russian Federation, concerning the enshrinement at the constitutional level of the term “fundamentals of public law and order”. In this regard, the article addresses such issues of the institution of public order as the absolute uncertainty of the term, the lack of uniformity in judicial practice and the increasingly broad interpretation of the concept of “public order”. As a result, it is concluded that the term “fundamentals of public order” is more acceptable, since what is referred to as public order in judicial practice actually constitutes its foundations (principles of Russian law, morality and ethics, etc.), an opinion is expressed about the need to unify terminology, using constitutional terms in sectoral legislation, as well as the need for constitutional enshrinement of the protection of public order as a general principle, while it is necessary to limit the “scope” for judicial discretion by enshrining the concept of public order and its foundations at the legislative level, since the institution of public order is of fundamental importance and its interpretation should not be unlimited.

This paper analyses UK domestic bribery. The authors argue that in both domestic and international contexts, cases are not numerically significant but that changes in how the UK government approaches bribery in the international context means that, where once domestic bribery was addressed more rigorously than bribery in the international context, this imbalance may be being steadily reversed. The paper concludes by setting out the implications that this identifiable divergence may have for the effective policing of bribery in the domestic context. The paper makes an empirical and theoretical contribution to the literature on corruption in the UK. Impact This paper analyses the UK response to bribery and corruption and provides evidence of a divergent approach, in terms of strategy, policy and enforcement action, to addressing bribery in the domestic and international contexts. This has adverse implications for the prevention, detection, and investigation of bribery. In order to reduce the divergence and reinforce the domestic focus, governments need to ensure better and more detailed data for monitoring of the extent of bribery, the presence of a single lead for the domestic context to ensure consistency and co-ordination, and the availability of training for relevant staff to make certain relevant stakeholders are alert to emerging corruption issues. The empirically informed insights and arguments in this paper are relevant to policy-makers and practitioners working in the area of anti-corruption, as well as non-governmental organizations seeking to scrutinize anti-corruption strategies, policies and practice in the UK.

Modern legal doctrine considers public order as a multifaceted legal construct that integrates key principles of law and order, ethical norms of society and basic legal values. The article examines the institution of public order as a complex legal phenomenon in the civil law system of Ukraine. Based on the analysis of scientific sources and legislation, the essence and content of the category of public order, its features and significance for the legal system are revealed. Special attention is paid to the study of public order in the context of the invalidity of transactions and private international law. The problem of determining the content of public order in judicial practice and doctrine, its correlation with the norms of civil law are analyzed. Theoretical and practical problems of applying the category of public order as a basis for the invalidity of transactions are considered. The historical development of the concept of public order from Roman law to the present day, its transformation in the Soviet period and the peculiarities of understanding in the conditions of a market economy are investigated. Special attention is paid to the analysis of public order as a mechanism for restricting the application of foreign law in private international law. The approaches to the definition of public order in the legislation and judicial practice of Ukraine are analyzed, in particular, some positions of the Supreme Court of Ukraine on the interpretation of this category. The issues of the correlation of public and private law in the context of public order are studied, as well as the features of its application in different legal systems. The specifics of the application of the category of public order in international commercial arbitration and in the recognition and enforcement of foreign court decisions are considered. Based on the conducted research, the need for a clear legislative definition of the category of public order and improvement of the mechanisms of its application in judicial practice is substantiated. The conclusion is made about the dual nature of public order in civil law and its importance for protecting the fundamental interests of society and the state. Ways of improving the legal regulation of public order are proposed, taking into account international experience and modern trends in the development of law.

The legal regime for arbitration in Australia has undergone dramatic changes in the past five years. International arbitration matters are now governed exclusively by the International Arbitration Act 1974 (Cth) (at least for arbitration agreements entered into on or after 6 July 2010) and domestic arbitration is regulated by new uniform State and Territory legislation (except in the ACT). This paper examines key aspects of the Commonwealth legislation including the enforcement of arbitral agreements and awards under the New York Convention, the scope and application of the UNCITRAL Model Law in Australia (including the status of pre-6 July 2010 agreements) and the amendments introduced in 2010. The paper concludes with a discussion of the new principles applying to domestic arbitration.

ABSTRACTThis paper analyses UK domestic bribery. The authors argue that in both domestic and international contexts, cases are not numerically significant but that changes in how the UK government approaches bribery in the international context means that, where once domestic bribery was addressed more rigorously than bribery in the international context, this imbalance may be being steadily reversed. The paper concludes by setting out the implications that this identifiable divergence may have for the effective policing of bribery in the domestic context. The paper makes an empirical and theoretical contribution to the literature on corruption in the UK.

Until 2000, the competence for procedural laws in Switzerland had been vested with the cantons and not with the Swiss Federation. For domestic arbitration, a unification of the cantonal provisions had taken place through a Concordat, which is an agreement between cantons. The Concordat regarding domestic arbitration was concluded in 1969 (“Concordat”). On 1 January 2011, the new Swiss Code on Civil Procedure (“CCP”) will enter into force. It regulates and unifies the civil procedure before State Courts throughout Switzerland. In its Part 3, it provides for a new set of rules for domestic arbitration. The present article discusses the main principles and goals of the revised rules on domestic arbitration in Switzerland. Although the new rules are based on the Concordat, some changes have been introduced. The present article highlights the most important ones. The drafters of the CCP provisions on domestic arbitration have not limited themselves to amending the Concordat but have taken the opportunity to modernize the current regime of domestic arbitration and have thus introduced new provisions regulating the issues which have not been explicitly provided for under the old regime. Some of these provisions are specifically noteworthy also from the point of view of international arbitration practitioners because these provisions are also new in comparison to Chapter 12 of the Swiss Private International Law Act (“PILA”), which forms the Swiss lex arbitrii for international arbitration. The article therefore also briefly highlights the main differences of the revised rules on domestic arbitration as compared to Chapter 12 PILA. Finally, as a concluding remark, the author addresses the question of whether, in light of the newly introduced rules on domestic arbitration, the PILA is in need of a revision as well.

The Doctrine of ?manifest disregard of the law? arose out of dictum in a U.S. Supreme Court decision dating back to the 1950s, which mysteriously seems to have developed into a possible challenge to arbitral awards. Many international arbitration practitioners are aware of the Doctrine, but many seem to have difficulties in fully assessing the scope of its application and its possible impact on international arbitration. This article considers whether the Doctrine is, in fact, a myth, which, as far as it exists at all, affects only domestic arbitrations within the U.S. or whether international arbitration practitioners should be concerned about its potential to be used to resist recognition and enforcement of an international arbitral award. In considering the Doctrine, the article first examines the meaning of ?manifest disregard of the law? and the extent of its usage within the sphere of U.S. domestic arbitrations. It then explores whether the Doctrine can be applied to international arbitral awards, where the place of arbitration was within the U.S. and then, those where the place of arbitration was elsewhere. It also analyses the interrelation between the Doctrine and the New York Convention, in particular, the public policy exception to recognition and enforcement. In its conclusion, the article suggests that, to a certain extent, the Doctrine is a myth, in that it is so rarely successfully invoked, even in the domestic arena, and also that it is not compatible with the grounds for resisting recognition and enforcement under the New York Convention. However, given that it appears to be often used, despite its low chances of success and, given that U.S. Courts have extended its reach to international arbitration awards rendered within the U.S., it is not something that international arbitration practitioners can ignore completely and practitioners should be aware of this when considering the U.S. as the place of arbitration.

The relevance of the study is confirmed by the fact that in the conditions of globalization of the world economy and the development of international commercial turnover, the importance of international commercial arbitration is rapidly increasing, as well as by the fact that there is complexity and ambiguity in understanding the legal category of "public order" due to the fact that this institution is not a definitively regulated area of law enforcement in the modern legal order. The object of research of this article is social relations arising as a result of the activities of arbitration courts in international commercial turnover. The purpose of the work is to identify the procedures, mechanism and features of the application of the public policy clause in the field of recognition and enforcement of international commercial arbitration decisions. When writing this article, both general scientific research methods, including analysis, synthesis, deduction and induction, and special methods of cognition, such as comparative legal and descriptive methods, were used. One of the main methods in this work is comparative law, since it helps to identify the similarities and differences of the legal systems under consideration, which are the subject of the study. The novelty lies in the consideration of the correlation of issues concerning the legal nature of "public order", as well as the analysis of cases related to the procedure of refusal to recognize and enforce decisions of international commercial arbitration on the territory of a foreign state on the basis of contradiction to public order. In the course of the study, the following conclusions were made. The complex of problems that have formed in this area is almost impossible to solve by signing and putting into effect a single normative legal act of the international level. The list of cases of application of this legal category in arbitration activities is non-exhaustive. The public policy clause is one of the most important components of the institutions of private international law. The institution of public order has an extraordinary character in the decisions of international commercial arbitration.

In the article, from the point of view of the modern theory of administrative law, administrative proceedings considered as a way of ensuring public order. The methodological basis of the article consists of a systematic approach and a system-functional analysis. The category «public order» considered. Attention drawn to the lack of a single theoretical approach to defining the concept of «public order» in administrative law. The problematic aspects of the category «public order» are considered, the legislation and judicial practice are examined, which allow us to conclude that there is no unified understanding and theoretical approach to the definition of the concept of “public order” in administrative law. It proposed to understand public order as an administrative-legal institution that ensures the supremacy of the law in the sphere of management. Public order is a complex construction of law, the content of which is important, as it allows identifying the sphere of administrative activity of the state in public management, to separate administrative activity from judicial activity in the context of administrative justice. It indicated that general local and administrative courts and the system of commercial courts carry out administrative proceedings within the current judicial system. According to the current legislation, disputes related to the administrative responsibility of legal entities and individual entrepreneurs handled in the commercial court. Administrative proceedings in commercial courts is a field of judicial activity introduced as a means of judicial control in the field of public legal relations, but the specified activity must be conducted within the scope of administrative proceedings. Proceedings in cases of administrative offenses are assigned by the legislator to the competence of executive (public) authorities, occupy a separate place in the sphere of public administration, are not a function of the judiciary from the point of view of the current legislation of Ukraine and scientific views on administrative and jurisdictional activity that take place in scientific circles countries of the European Union.

We consider the concept of "public order". We emphasize that the protection of public order is reflected in a number of provisions of the Criminal Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation. Based on doctrinal points of view, a list of acts that infringe on public order is established, since not all the norms of these Codes specify that they are aimed at protecting public order from unlawful infringements. At the same time, the legislator does not propose its interpretation, although a number of regulatory legal acts regulating the protection of public order are adopted. Therefore, based on doctrinal points of view, we propose the definition of this concept: public order is expressed in the observance by individuals of the norms of laws, morality in public places, ensuring public peace, the inviolability of the person and the normal functioning of government bodies and local self-government, the activities of public organizations and legal entities. In addition, in the scientific literature there is a position that any crime violates public order (consequently, this also applies to administrative offenses), but based on judicial practice, we conclude that when committing other crimes and offenses that are not related to violation of public order, they do not indicate a violation of public order, and applicable to the analyzed acts there is not always any specification – what exactly is expressed in violation of public order.

The paper explores the essence and structure of public order as a general principle of every legal and social system, as well as a clause in international private law. The complexity, dynamics and importance of public order are described in this paper. The author emphasizes that public order in the broadest sense entails not only mandatory provisions, but also moral rules, accepted standards and judicial practice. This institute covers crucial social values, institutes and actions of public bodies. Public order has at least two objectives: 1) protection - public order protects human rights and freedoms as well as social community, 2) regulation of social processes, especially of public services. For this reason it is not possible to reduce public order to restrictions and/or orders. Finally, the author introduces the most important characteristics of public order and classifications of this institute.

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The article investigates the deficiencies in the legal regulation of transaction invalidity, focusing on the interrelationship between the concepts of «public order» and «state interests» within the framework of the Civil Code of Ukraine (CC of Ukraine). It specifically highlights shortcomings in Article 228 of the CC of Ukraine, which amalgamates void transactions (those that violate public order) with voidable transactions (those that contravene the interests of the state, society, and its moral principles). The study substantiates the argument that this amalgamation deviates from the established structure of regulating transaction invalidity in the CC of Ukraine, wherein each article typically addresses a single category of invalidity—either void or voidable transactions—thereby ensuring systematic coherence in legislative design. The research traces the origins of this inconsistency, with particular emphasis on the inadequate justification provided in the explanatory note to Law of Ukraine No. 2756-VI for the amendments to Article 228 of the CC of Ukraine. This lack of robust reasoning is indicative of flaws in legislative drafting techniques, undermining the integrity of the norm-creation process. The article demonstrates the incongruity between the title of Article 228 of the CC of Ukraine and its substantive provisions. In its current formulation («Legal consequences of entering into a transaction that violates public order, made with a purpose contrary to the interests of the state and society»), the title fails to accurately encapsulate the normative rule it establishes, fostering a misleading impression that the article pertains exclusively to transactions violating public order. In reality, it governs two distinct types of invalid transactions: those breaching public order (void) and those conflicting with the interests of the state and society (voidable). This lack of alignment impedes the norm’s intelligibility and contravenes the principles of legal quality, including clarity, precision, comprehensibility, and consistency. The study conducts a comprehensive analysis of the concepts of «public order,» «state interests,» and «moral principles of society,» drawing on judicial practice—most notably decisions of the Supreme Court—and established doctrinal perspectives within legal scholarship. This analysis supports the proposition that transactions inconsistent with the interests of the state are inherently violations of public order by their legal nature. Consequently, such transactions ought to be classified as void rather than voidable, contrary to the provisions of current legislation. Additionally, the article addresses the challenge of delineating the scope of entities entitled to initiate proceedings to declare transactions that contravene the interests of the state, society, and its moral principles invalid. With reference to prevailing judicial practice, which limits this authority to a select group of entities vested with public powers, the study critiques this restrictive approach. It proposes expanding the range of eligible entities to include not only those with public authority but also the parties to the transaction and other interested persons seeking the invalidation of such transactions, thereby aligning with broader civil law principles.

The relevance of this study is that due to the conditions of the globalization of the world economy and the development of international commercial turnover, the importance of international commercial arbitration is rapidly increasing. There is also complexity and ambiguity in understanding the legal category of "public order" because this institution is not a definitively regulated area of law enforcement in the modern legal order. This article’s research object is the social relations arising through the activities of arbitration courts in international commercial turnover. This work aims to identify the procedures, mechanisms, and features of applying the public policy clause in recognizing and enforcing international commercial arbitration decisions. When writing this article, both general scientific research methods, including analysis, synthesis, deduction, and induction, and special methods of cognition, such as comparative legal and descriptive methods, were used. One of the main methods in this work is comparative law, as it helps identify the similarities and differences of the legal systems under consideration, which are the subject of the study. The novelty lies in consideration of the correlation of issues concerning the legal nature of "public order," as well as the analysis of cases related to the procedure of refusal to recognize and enforce decisions of international commercial arbitration in the territory of a foreign state based on contradiction to public order. In the course of the study, the following conclusions were made. The complex problems that have formed in this area are almost impossible to solve by signing and putting into effect a single normative legal act at an international level. The list of cases applying this legal category in arbitration activities is non-exhaustive. The public policy clause is one of the most important components of the institutions of private international law. The institution of public order has an extraordinary character in the decisions of international commercial arbitration.