Final ILA Report on Public Policy as a Bar to Enforcement of International Arbitral Awards

Abstract

THIS IS the Final Report of the International Law Association Committee on International Commercial Arbitration on the topic of public policy as a ground for refusing recognition1 and enforcement of international arbitral awards. The Committee has agreed upon a number of Recommendations as to the application of public policy by State courts.2 This Final Report sets out the Recommendations and provides a brief commentary on each. This Report should be read together with the Committee's Interim Report presented at the London Conference in June 2000 (‘Interim Report’).3 The Recommendations are the culmination of a six year study of public policy by the Committee, starting after the Helsinki Conference in 1996.4 The Recommendations themselves have been discussed and agreed by the Committee at meetings in London (June 2000), Amsterdam (September 2000), Paris (January 2002) and at the Conference Working Session in New Delhi (April 2002). A number of Committee members have made written comments. ### Recommendation 1(a) The finality of awards rendered in the context of international commercial arbitration should be respected save in exceptional circumstances. Those who drafted the New York Convention intended that enforcement should be refused only in a number of limited circumstances [ see Article V). This was also the objective of the UNCITRAL Model Law ( see Article 36). An enforcement court must carry out a balancing exercise between finality and justice. The New York Convention and the Model Law permit such an exercise by making the court's power discretionary, i.e . enforcement ‘may’ be refused. Many courts have expressed a policy favouring enforcement.5 For example, the European Court of Justice in Eco Swiss China Time Ltd v. Benetton International NV (1999) stated:6 > it is in the interest of efficient arbitration proceedings that review of arbitration awards should be limited in scope and that …