Public Policy Under Article V (2) (B) of the New York Convention: Is There a Transnational Standard?

Abstract

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards is one of the key instruments in international arbitration. It applies to the recognition and enforcement of foreign arbitral awards in the territory of a State other than the one in which recognition and enforcement is sought. The Convention unified methods of deciding whether to recognize and enforce a foreign arbitral award. Article V (1) of the Convention contains the grounds on which a party can resist recognition and enforcement and Article V (2) contains grounds on which the competent authority in a State can sua sponte refuse recognition and enforcement. This paper focuses on Article (V) (2) (b) of the Convention, under which recognition and enforcement of an arbitral award may be refused if the competent authority in the country where recognition and enforcement is sought finds that “the recognition or enforcement of the award would be contrary to the public policy of that country”. Article V is addressed to the States in which recognition and enforcement is sought and the language in Article V (2) (b) indicates an intention to provide ultimate control to that State to decide whether it will admit a foreign arbitral award into its legal order and use its executive powers to give effect to the award. However, over the years, there has been a debate about the notion of public policy in Article V (2) (b). It has been suggested that States must defer to a ‘transnational’ or ‘supranational’ notion of public policy under Article V (2) (b). In this paper, I examine whether State parties to the Convention have an obligation to defer to a transnational standard of public policy. I also address the question of whether States should defer to a transnational standard in the absence of an obligation to do so under the Convention and in answering this question, I contest the existence and possibility of a wholly transnational conception of public policy.