Towards a Transnational Procedural Public Policy

Abstract

The topic ‘Towards a Transnational Procedural Public Policy’, may appear on the face of it to be a narrow one, but in fact it is wide and rich. The focus I will give the subject in this article is two-fold. First, as an objective exercise, I will briefly define the scope of the topic and identify the uniform principles with regard to the public policy that currently limits or shapes international arbitral procedure.1 Then, as a prescriptive exercise, I will comment on how the international arbitration community – meaning not only the institutions but also the arbitrators and the practitioners themselves – safeguards those principles in conjunction with the ever-present goals of (i) preserving the autonomy of the parties,2 (ii) maintaining the comparative ease and efficiency of the arbitral process3 and (iii) promoting the finality and integrity of arbitral awards4 – three of the principal buttresses of the international arbitration edifice. ### a. Public Policy Because ‘public policy’ has a different meaning within different legal traditions, it is important to establish the scope of the term for our purposes here. In the Anglo-Saxon legal tradition, the meaning of ‘public policy’ is relatively narrow, referring to ‘matters of public morals, health, safety, welfare, and the like’5 and is distinguishable from matters related to due process. In the continental European tradition public policy, or ordre public , refers to a wider range of judicial concerns, a range that ‘encompasses breaches of procedural justice’.6 It should be made clear from the outset, then, that in the context and tradition of international arbitration practice, the acknowledged meaning of ‘public policy’ is the broader one. Indeed, the Report of the UNCITRAL Commission on the Model Law on International Commercial Arbitration stated that: > [i]t was understood that the term ‘public policy’, which was used …