International arbitration is an integral element of the globalized modern economy. It is the principal method of resolving commercial disputes between States, individuals, and corporations in almost every aspect of international trade.
Arbitration relies on the notion of party autonomy—that the parties to an agreement may freely choose the law applicable to their agreement and to the resolution of any dispute arising out of it. However, agreements have to be performed and arbitral awards rendered somewhere, and in the modern world in which the preeminent legal authority is the sovereign State, these actions necessarily occur under a legal framework and a public policy not shaped by the parties.
When rules of public policy are implicated in the agreement underlying a dispute in arbitration—or in the award resulting from the for arbitration proceedings, a State must navigate between the Scylla and Charybdis of lending its authority to the recognition of an agreement or enforcement of an award contrary to its fundamental principles or of appearing not to respect the principle of finality of arbitral awards underpinning the system of modern international commerce.
What route should national courts—the “watchmen of public policy”—choose? Should party autonomy cabined by respect for international public policy? Or should public policy be viewed as a safety valve utilized only in emergencies, where recognition and enforcement would be fundamentally at odds with a State’s most cherished principles and values?
This thesis details the provisions for refusal of recognition or enforcement of arbitral awards on the grounds of public policy that currently exist in major international conventions and model legislation as well as in the legislation of the United States and selected European Union Member States. The various ways in which public policy can be understood is explained, and the application of the public policy exceptions in the United States and selected European Union Member States are detailed. Finally, trends in the United States and the European Union with respect to public policy and arbitration are examined.
