The Public Policy Sword and the New York Convention: A Quest for Uniformity

2009 ◽  
Author(s):  
John Wires
Keyword(s):  
Public Policy ◽  
New York ◽  
The Public ◽  
New York Convention

scholarly journals Effects of Public Policy on Arbitration

2013 ◽  
Author(s):  
Mustafa Topaloğlu
Keyword(s):  
Public Policy ◽  
New York ◽  
Civil Procedure ◽  
Point Of View ◽  
International Arbitration ◽  
Legal Rules ◽  
The Public ◽  
International Private Law ◽  
New York Convention ◽  
Court Of First Instance

Public policy is a ambiguous concept. Public policy can be defined as a set of rules which protecting the essential structure of society and its interests. Under New York Convention dated 1958, an arbitration verdict which breaching of public policy in the executing country can’t be executed. Same provision valid under Turkish Act Related International Private Law and Procedure Law. An arbitration verdict can’t be subject to appeal directly. But, it can be sued for annulment before court of first instance. The public policy is stipulated as a ground of annulment in the Turkish International Arbitration Act. New Turkish Civil Procedure Act accepted same solution about domestic arbitration. In this paper was tried to define the public policy concept and examined point of view of legal rules questioned above.

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 A refusal reason of recognition and enforcement of foreign arbitral awards

2019 ◽  
Vol 56 (2) ◽  
pp. 503-522
Author(s):  
Yunus Emre
Keyword(s):  
Public Policy ◽  
New York ◽  
Public Order ◽  
The Public ◽  
Arbitral Award ◽  
Recognition And Enforcement ◽  
New York Convention

Public policy is one of the most debated concepts in enforcement cases of foreign arbitral award as a sensitive term. It is the most frequent challenging reason of foreign arbitral awards in New York Convention, and therefore it may be used as a defense tool against foreign arbitral awards in enforcement cases before courts. Although public policy is not only refusal reason in New York Convention, other refusal reasons covered by New York Convention may be interpreted as public policy violations before courts. Therefore, relationship between public order and other refusal reasons is key point of this research. Secondly, one important well-known fact should be emphasized regarding public policy. Each country has its own public policy concept and criteria differently from other countries. Although one foreign arbitral award may be enforced in a country as it is in accordance with the public order of country of enforcement, it may be refused in a different country because of public policy reason. Therefore, public policy concept shall be discussed in different aspects in this study.

Transnational Public Policy in International Arbitration

2020 ◽  
pp. 119-149
Author(s):  
Stavros Brekoulakis
Keyword(s):  
Public Policy ◽  
New York ◽  
Clear Distinction ◽  
Historical Evolution ◽  
International Arbitration ◽  
Rules And Principles ◽  
Recognition And Enforcement ◽  
New York Convention ◽  
Almost All

This chapter focuses on the role of transnational public policy in international arbitration. Public policy is a key concept for international arbitration because it has provided the underpinning foundations for the development of theories on transnational autonomy of arbitration. Moreover, it is enshrined in the 1958 New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards as well as almost all national laws as a ground to resist enforcement of arbitral awards. The chapter then traces the historical evolution of transnational public policy and provides an overview of its legal function and rules and principles. The clear distinction between legal and non-legal conceptions of transnational public policy matters because it has important implications on the judicial function of tribunals in international arbitration.

10 Setting Aside an Arbitral Award

2017 ◽  
Author(s):  
Kim Joongi
Keyword(s):  
Public Policy ◽  
New York ◽  
Arbitral Award ◽  
Model Law ◽  
New York Convention

This chapter considers the grounds for setting aside an arbitral award. It looks at cases where set-asides have occurred—due to invalid agreements, an excess of jurisdiction, the formation of a tribunal, and public policy arguments. The Arbitration Act’s provisions concerning set-aside closely follow the Model Law and New York Convention. The chapter, however, also discusses other pre-Model Law grounds for a set-aside, such as when ‘a decision has been omitted regarding an important matter that would affect the judgment’. Moreover, the chapter explores the effects of a set-aside, before closing with some arguments raised by leading arbitration scholars.

Understanding Public Policy as an Exception to the Enforcement of Foreign Arbitral Awards

2015 ◽  
Vol 2 (4) ◽  
pp. 316-350
Author(s):  
Wasiq Abass Dar
Keyword(s):  
Public Policy ◽  
New York ◽  
Special Focus ◽  
Commercial Arbitration ◽  
National Courts ◽  
Or Practice ◽  
Wide Definition ◽  
Model Law ◽  
New York Convention ◽  
Definition Of

The paper, as the title suggests, aims at understanding and exploring the doctrine of public policy as a ground for refusing enforcement of foreign arbitral awards. Public Policy is one such ground provided in the New York Convention as well as in the uncitral Model Law, which is most often invoked in the national courts to challenge or refuse the enforcement of foreign arbitral awards. What makes it more complicated is the lack of common world-wide definition of public policy or practice on its application, as the same varies from State to State. The traces of ambiguity, subjectivity (at the hands of the courts in terms of interpretation of the concept), and unpredictability associated with the concept of public policy have at times significantly thwarted the effectiveness and efficiency of international commercial arbitration. This paper attempts to understand and explore the enigma of public policy as an exception to the enforcement of foreign arbitral awards. Apart from revisiting various scholarly works on this issue, interpretation of this concept by various judicial institutions across the globe (with special focus on India, Pakistan, Bangladesh and Sri Lanka) has been attempted, followed by a comparative analysis, to analyse its application on the ground. This paper argues and suggests that a more desirable method of interpreting public policy, i.e. narrow interpretation, is the need of the hour, keeping in consideration the growing demands of international trade and commerce.

scholarly journals Recognition and Enforcement of Arbitration Awards in Kazakhstan

2018 ◽  
pp. 358-367
Keyword(s):  
Public Policy ◽  
New York ◽  
General Meeting ◽  
Civil Procedure ◽  
International Arbitration ◽  
Procedure Code ◽  
Recognition And Enforcement ◽  
The Law ◽  
The Republic ◽  
New York Convention

Arbitration, as an alternative way to resolve commercial disputes, has been used in Kazakhstan for more than twenty years. Arbitration Court is governed by Civil Procedure Code, The Law On Enactments and the Regulatory Resolution. The expansion of the list of documents in the Regulatory Resolution does not comply with the requirements of the New York Convention and therefore, the purpose of our study is to clarify it. The research institute of private law of the Caspian University together with Kazakhstan International Arbitration prepared proposals for making amendments and supplements to the Law On Arbitration and the CPC at the request of the Arbitration Chamber of Kazakhstan. Most of the proposals developed by us were approved and included in the Draft Law of the Republic of Kazakhstan On Amendments and Supplements to Certain Enactments of the Republic of Kazakhstan On Enhancing Protection of Title and Arbitration after discussion at the meetings of the General Meeting members of Arbitration Chamber of Kazakhstan. It was proposed to bringing in compliance with the New York Convention some paragraphs of the Art. 255 and the Art. 504 of CPC and a series of articles in the Law on arbitration. In this article also given answers to some questions of the arbitration court regarding corporate and marriage dispute, as well as an issue of contradiction public policy.

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