The Public Policy Sword and the New York Convention: A Quest for Uniformity

Abstract

This paper argues that the public policy exception to the enforcement of foreign arbitral awards is not applied uniformly across national borders by domestic courts. There are varying levels of public policy and a degree of uncertainty regarding which national courts will uphold certain awards, and which will not. Even though the international business community has greatly benefited from the New York Convention, there is still progress to be made in harmonizing public policy.Part I of this argument will look at the debate surrounding international vs national concepts of public policy. It will conclude that within the 142 member states, a division still exist between those who apply domestic, international and even transnational concepts of public policy. In this context, the paper will mainly concern itself with the public policy exception at the enforcement stage. Part II will then shift to an analysis of public policy in the context of denying or ousting the jurisdiction of arbitrators to hear cases. In this context, as will be discovered, some courts use their domestic public policy to deny arbitrators from hearing disputes. Finally, with the illustrations of how public policy has been applied non-uniformly, Part III will provide suggestions for how greater uniformity can be achieved in the application of public policy under the New York Convention.