The Public Policy Defence to Enforcement of Arbitral Awards: Rising Star or Setting Sun?

Abstract

The realisation that foreign arbitral awards needed a framework for international enforcement resulted in the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which amongst other things included grounds for refusal of recognition and enforcement of arbitral awards. This paper attempts to examine the use of “public policy” as a ground to refuse enforcement and review the status and scope of the defence when raised in different countries. It concludes with the position that though there are certain countries that have interpreted the public policy defence in an expansive and possibly protectionist manner to refuse enforcement, this is not a trend that is gaining ground. Rather, the restrictive and pro-enforcement definitions of public policy espoused by most countries is effectively watering down the potency of the public policy defence as a means of refusing enforcement of foreign arbitral awards.