Transnational public policy

Abstract

The article explores the legal institution of transnational public policy, which is unfamiliar in Russian judicial practice. This type of public policy is usually only mentioned in passing in studies dealing with the application of the public policy clause. Meanwhile, the transnational public policy is a quite complex legal phenomenon, on the legal nature and even application expediency of which, there are diametrically opposed opinions. The disputes concerning transnational public policy largely stem from the more global contradictions caused by the existence of various theories about the legal nature of international arbitration. At the same time, the transnational public policy is no longer exclusively a theoretical construction and is used by international commercial and investment arbitrations, although infrequently. The arbitrators’ concerns when using this legal institution are due to the uncertainty of its content, the lack of a stable practice of use, as well as an understandable reluctance to justify their own conclusions in their award by referring to a dubious (from the position of the national court, which will subsequently enforce such an award) legal concept. Meanwhile, rare cases when arbitrators nevertheless decided to resort to a reference to a transnational public policy become the object of close attention of foreign researchers as examples of a very progressive approach to dispute resolution and argumentation of decisions made. The article defines and compares the main theoretical views on the essence and content of the transnational public policy, examines the practice of its application by international commercial and investment arbitrations, and also examines the possible prospects for its application by national judicial authorities. The opinions of researchers, including negative ones, regarding the viability of the concept of transnational public policy itself are also presented. The major material for the study were foreign scientific articles, which set out various views on the legal nature of the transnational public policy, as well as a few examples from international arbitral practice. Based on the results of the study, conclusions are drawn about the prospects of transnational public policy application by state courts, as well as about the feasibility of its use by international commercial and investment arbitrations.