Kastom: A Public Policy Exception Under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Abstract

Despite the enormous success of the New York Convention, the Pacific Island countries [“PICs”] are a blank spot on the New York Convention map. Any effort to promote international arbitration law reform in the PICs has to be sensitive to their exciting legal frameworks to be successful. The PICs are plural legal systems in which ‘kastom’ provides a set of norms often equal to positive laws. An obstacle on the PICs’ way to become part of the international arbitration community are fears that their ‘custom’ or ‘kastom’ may be left aside or overridden by the overseas legal principles and paradigms. The paper discusses if and to what extent the PICs’ ‘kastom’ may qualify as ‘public policy’ under Article V(2)(b) of the New York Convention, thereby allowing Pacific Island states to deny the recognition and enforcement of foreign arbitral awards which they deem fundamentally contrary to their ‘kastom’.