What did the IBA discover about the public policy exception?

What did the IBA discover about the public policy exception?

arbitrationIn October 2015 the IBA Subcommittee on Recognition and Enforcement of Arbitral Awards published its Report on the Public Policy Exception in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) Article V(2)(b). The subcommittee’s main report was a summary of the findings of country reports prepared by different members and reporters of the subcommittee. Catherine Reeves considers the report's findings.

Importance of the public policy ground

Under art V (2)(b) of the New York Convention, recognition and enforcement of an arbitral award may be refused if the competent authority of 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. It is therefore one of the few grounds on which recognition and enforcement of an award made in a country which is party to the New York Convention may refused to recognise and/or enforce an award. Public policy is not defined in the convention.

The subcommittee’s project (self-admitted to be an ambitious one) was to attempt to define public policy as a ground for refusing enforcement under the convention and to draw up a catalogue of its concrete manifestations based upon the decisions issued by enforcing courts having denied enforcement for violation of public policy.

Findings

The report found that while public policy was often invoked by those seeking to avoid enforcement, examples of it in practice were uncommon and that recognition and enforcement of a foreign award are rarely refused under art V(2)(b) of the convention. Some countries (of the 45 country reports appended to the main report) had no known decisions of recognition and enforcement being refused on public policy grounds.

Some consistency was found with most domestic courts concurring that public policy had both procedural and substantive aspects:

  • Procedural: for example the violation of the right to be heard or of due process, violation of equal opportunity to present one’s case, award obtained by fraud or based on falsified documents. Procedural public policy makes up the majority of cases where recognition and enforcement is refused under art V (2)(b).
  • Substantive: for example issues of EU antitrust and competition law, equality of creditors in insolvency situations, state immunity, prohibition of punitive damages or excessive interest (the report did note that it is difficult to identify violations of substantive public policy which transcend national boundaries).

In the vast majority of jurisdictions, courts narrowly interpret or apply the  rules and values on which society rests by requiring a certain level of intensity for a given circumstance to be held contrary to public policy. The predominant trend is to limit the review on public policy grounds to a conformity-check of the arbitral decision itself, not its reasons, with public policy assessed in the country where enforcement is sought.

The subcommittee now plans to go on to identify any trends in the definition of public policy by commercial and investment arbitral tribunals by this research is on-going.

The subcommittee invites questions, comments or suggestions generally about the general and country reports, or those who want to prepare a country report for a country not yet covered by the study, to contact the Chair of the Subcommittee, Pascal Hollander, Hanotiau & van den Berg, Brussels, at pascal.hollander@hvdb.com.

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