International Arbitration and Public Policy Issues in the Indian Subcontinent: A Look Through the English Common Law and International Lenses

Abstract

Public policy is an important issue in the context of international arbitration and, for that matter, domestic arbitration. However, in respect of the former there appears to be progressively a more restrictive approach applied globally than in the latter. Since the public policy issues could prove to be a stumbling block to the recognition or enforcement of a foreign arbitral award in the concerned country’s courts, an international arbitral tribunal should be mindful of the matter, though challenging, while rendering the award. The best guide for an international arbitral tribunal would be to look into the recognising or enforcing country’s law and practice in the context. The article is concerned with the public policy issues for the recognition or enforcement of foreign arbitral awards in the three major countries of the Indian subcontinent such as India, Pakistan and Bangladesh. These countries have historically had the common heritage of the English common law system which influences their respective laws, court decisions and jurisprudence. Thus, the article examines the public policy issues in the context of international arbitration in these countries in light of the English common law and international arbitration law and practice so that international arbitrators could draw upon the findings of the study while rendering arbitral awards, and when it is so relevant.