scholarly journals Public policy rule as a ground for refusing in recognition and enforcement of international commercial arbitration awards in china mainland

2021 ◽  
pp. 251-257
Author(s):  
Qiu Xicheng
Keyword(s):  
Public Policy ◽  
Public Interest ◽  
Mainland China ◽  
Court Decisions ◽  
Policy Rule ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The Public ◽  
Recognition And Enforcement ◽  
China Mainland

In China, public policy is commonly defined as “social and public interest” or “public interest”, the understanding and boundaries of which are rather vague, which gives the court more a broad discretion in applying the public policy rule. The article examines the content and development of public order in the legislation of China. The author analyses the practice of application the public policy rule in China and provides statistical data about the ground for refusal of Chinese courts to enforce international commercial arbitration awards based on the information obtained from public databases containing Chinese court decisions. The author also provides examples of court decisions denying recognition and enforcement of foreign arbitration awards in mainland China and summarizes the rules for application by the Chinese people’s courts of the public policy rule, established in judicial decisions, and the tendencies in the development of China’s approach towards international commercial arbitration.

SOME ISSUES OF RECOGNITION AND ENFORCEMENT OF DECISIONS OF ARBITRATION IN UKRAINE ON THE GROUNDS OF THE INFRINGEMENT OF PUBLIC POLICY

2017 ◽  
Author(s):  
Yuliia Klymovych ◽  
◽  
Inessa Shumilo ◽  
Keyword(s):  
Public Policy ◽  
Social Relations ◽  
Court Decisions ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts ◽  
Recognition And Enforcement ◽  
Definition Of ◽  
Court Practice

The article is dedicated to the examination of such a ground for refusal of recognition and enforcement of decisions of international commercial arbitration in Ukraine as the infringement of public policy. The author describes some approaches to the definition of the content of the term «public policy» basing on the examination of court practice from 2018 to 2020 and doctrinal sources. Particular attention is focused on the determination of the criteria which may be used for identification of the areas of social relations which form public policy. The author also pays attention to some criteria, whose usage may be helpful and effective in determining whether or not the infringement of public policy exists on conditions that a decision of international commercial arbitration is enforced. The author analyses some court decisions in order to inquire the position of national courts when deciding on giving a permission or refusing to recognize and enforce a decision of international commercial arbitration if a disputing party as a ground for refusal indicates the infringement of public policy.

scholarly journals Interpretation of the «Public Policy» Category in Recent Judicial Practice

2021 ◽  
pp. 30-42
Author(s):  
Ivan KOSTIASHKIN ◽  
Olena CHERNIAK
Keyword(s):  
Public Policy ◽  
Case Law ◽  
The State ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The Public ◽  
Judicial Practice ◽  
Recognition And Enforcement ◽  
Principles Of Justice ◽  
Definition Of

The article studies the concept of «public policy», presents doctrinal definitions of public policy, as well as definitions used in judicial practice, in particular in the decisions of the Supreme Court. It is established that the Ukrainian legislation does not contain a definition of «public policy», but from the analysis of case law it can be concluded that the public policy of any country includes the fundamental principles and principles of justice, morality, state system, political system and economic security, which the state wishes to protect, which means «public policy» is a broad and abstract concept. At the same time, such a position of the legislator, given the case law cited in the article, is justified and reasoned. It is analyzed that the Civil Code of Ukraine lists the grounds on which the transaction can be considered as violating public policy, at the same time, the analysis of case law shows that the category of public policy does not apply to any legal relationship in the state, but only on the essential foundations of law and order. The article also analyzes that the recognition or enforcement of the decisions of an international commercial arbitral tribunal may be denied if the court finds that the recognition and enforcement of this arbitral award is contrary to public policy of Ukraine, as an example listed court cases in which the enforcement of arbitral awards was refused due to a violation of public policy. In view of the above, it is proved in the article that the definition and understanding of the category of public policy is important in recognizing and bringing to the enforcement of international commercial arbitration courts decisions, as well as recognition of transactions as such that violates the public policy, which leads to insignificance of such transactions. It is summarized that today in Ukraine there is no normative definition of the concept of «public policy», and from the analysis of judicial practice we can conclude that judges interpret the concept of «public policy» quite broadly and abstractly. However, given that quite often cases of recognition of a transaction as contrary to public policy (invalid transaction), as well as the recognition and enforcement of international commercial arbitration and foreign courts judgments are «technical» cases brought in order to avoid the liability of a party against whom the decision was made, such an interpretation of the concept of «public policy» gives judges the opportunity to fully investigate, whether transactions or decisions in force violates public policy or the fundamental principles of justice and fairness of the state, without a statutory restriction on the concept of «public policy».

scholarly journals Bribery and International Commercial Arbitration – the Role of Mandatory Rules and Public Policy

2012 ◽  
Vol 43 (4) ◽  
pp. 661 ◽  
Author(s):  
Vladimir Pavić
Keyword(s):  
Public Policy ◽  
Civil Law ◽  
The Body ◽  
Criminal Behaviour ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The Public ◽  
Additional Problem ◽  
Mandatory Rules

Although designed to resolve private disputes, usually commercial in nature, arbitration may nevertheless encounter during its course allegations of impropriety and criminal behaviour. In the context of international commercial arbitration, the most common of those are allegations of bribery. However, tribunals may adjudicate only matters of private law and, should they establish existence of bribery, may draw only civil law consequences thereof. An additional problem in this respect is determining the body of rules that will be applicable in defining the very notion of bribery, since some aspects of bribery are almost universally prohibited, while the others are banned only in certain jurisdictions. In determining the law applicable to the matters of bribery, tribunals then face choice-of-law dilemmas. Each of the public policy techniques (overriding mandatory provisions, international and/or transnational) has its strengths and weaknesses. 

scholarly journals The Influence of the Law of the Country of the Place of Enforcement of the Arbitral Award on the Settlement of Disputes in the International Commercial Arbitration

2020 ◽  
pp. 86-97
Author(s):  
Volodymyr NAHNYBIDA
Keyword(s):  
Public Policy ◽  
New York ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitral Award ◽  
Opposing Party ◽  
Recognition And Enforcement ◽  
The Law ◽  
New York Convention ◽  
The Impact

The article examines the key aspects of the impact of the law of the place of enforcement of the arbitral award on arbitration and directly on the recognition and enforcement of arbitral awards, given the study of doctrinal positions, regulations and relevant case law. It was found out that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 refers to the procedural rules of the country of enforcement to settle matters inherent to the recognition and enforcement of foreign arbitral awards not governed by the Convention, establishing only basic and fairly simple formal requirements for the said procedure, which is one of the strong characteristics of the conventional regime of recognition and enforcement of arbitral awards. In light of this, it is concluded that such an approach is moderate and takes into account the impossibility and lack of practical necessity of unification at the international treaty level of procedural features of recognition and enforcement of arbitral awards, establishing only basic principles and requirements. It is substantiated that there are two components of the law of the place of enforcement of the arbitral award, which regulate the recognition and enforcement of arbitral awards within the relevant jurisdiction, namely substantive and procedural, which, however, are contained in single legal acts — mostly national arbitration laws. The author emphasizes the crucial role of the law of the place of enforcement of the arbitral award in the material and procedural aspects for the procedure of recognition and enforcement of arbitral awards within the relevant jurisdiction. It is concluded that the unification of material grounds for refusal of recognition and enforcement (in particular, non-arbitrability of the subject matter of the dispute and contradiction of the award to public policy as grounds that can be raised by the competent judicial authority at the place of enforcement ex officio, regardless of reference to them by opposing party), as well as the consolidation of basic procedural requirements and principles is carried out by the New York Convention of 1958, which leaves to the discretion of the national legislature, on the one hand, the settlement of minor aspects of the procedure, but, on the other hand, recognizes its full discretion in determining the limits of objective arbitrability, the content and specific filling of the category of international public policy applicable in the relevant jurisdiction. Keywords: arbitral award, international commercial arbitration, applicable law, arbitration process, public policy.

scholarly journals Public Policy as Ground for Refusal of International Arbitral Awards - A Comparison Between Different Judicial Practices

2016 ◽  
Vol 9 (10) ◽  
pp. 81
Author(s):  
Sormeh Bouzarjomehri ◽  
Eisa Amini
Keyword(s):  
Public Policy ◽  
New York ◽  
International Trade ◽  
Court Decisions ◽  
International Arbitration ◽  
The Public ◽  
Arbitration Process ◽  
Important Challenge ◽  
Recognition And Enforcement ◽  
New York Convention

<p>The New York Convention is considered as the main pillar of the international arbitration and the most effective transnational legal instrument in international trade. But the most important challenge that the Convention is facing is a uniform application by the Member States. Article V of the Convention containing several grounds for refusal of recognition and enforcement of arbitral awards, could be deemed as an obstacle to achieve this goal. The most controversial ground is the public policy that affects the uniform application of the Convention and the predictability of the arbitration process. Then the lack of a definition for public policy has opened the door for different interpretations in different countries.</p><p>The questions that the paper at hand deals with are the following: What are the consequences for the lack of a definition for the public policy ground in the New York Convention? Is it necessary to revise the New York Convention to address this issue?</p>In order to answer these questions, the paper at hand will present some court decisions in order to elaborate the mentioned challenge and find an appropriate solution.

scholarly journals Violation of public order as a ground for refusing to recognize and enforce the decision of the international commercial arbitration

2020 ◽  
Vol 3 ◽  
pp. 86-92
Author(s):  
Oleksandr Seryogin
Keyword(s):  
The State ◽  
Public Order ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The Public ◽  
National Bank ◽  
Recognition And Enforcement ◽  
Arbitration Award

The author of the article summarizes at the doctrinal level the following issues regarding the recognition and enforcement of decisions of international commercial arbitration. In particular: (1) whether Ukraine’s public order will be violated by the recognition and enforcement of an international commercial arbitration award, imposed on the National Bank of Ukraine, which was not a party to the proceedings, as the State of Ukraine is represented by the Ministry of Justice of Ukraine; (2) whether the public order of Ukraine will be violated if the Budget of Ukraine incurring significant losses in connection with the recognition and enforcement of the decision of the international commercial arbitration; (3) under what conditions the recognition and enforcement of the decision of the international commercial arbitration should be considered as violating the public order of Ukraine.

Jimmy Carter, Public Policy, and the Public Interest

1992 ◽  
Vol 4 (4) ◽  
pp. 453-466
Author(s):  
Norman C. Thomas
Keyword(s):  
Public Policy ◽  
Public Interest ◽  
Jimmy Carter ◽  
The Public ◽  
George Bush ◽  
Popular Image

By most assessments, Jimmy Carter's presidency was a failure. The popular image of Carter is that of a president who was politically naive, an inept manager, a well-meaning but nettlesome scold, and an unsuccessful leader. According to two recent scholarly evaluations, Carter was an ineffective leader who ranks in the bottom quintile of the thirty-nine presidents who have preceded George Bush.

Problems of recognition and enforcement of international commercial arbitration decisions

2021 ◽  
Author(s):  
Rafael' Komilzhonov ◽  
Yuliya Ivanova
Keyword(s):  
Russian Federation ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Recognition And Enforcement ◽  
The Russian Federation ◽  
Arbitration Award

The article analyzes the problematic aspects of recognition and enforcement of international commercial arbitration decisions on the territory of the Russian Federation. It is noted the complexity and lack of procedural guarantees for the parties to the dispute to implement the arbitration award. It is concluded that it is necessary to remove obstacles to the rapid and effective execution of commercial arbitration decisions.

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