Violation of Public Policy as a Ground for Refusal in Recognition and Enforcement of International Commercial Arbitration Awards

2017 ◽  
Vol 7 (5) ◽  
pp. 45-68
Author(s):  
A.V. Gabov ◽  
◽  
N.I. Gaidaenko Sher ◽  
E.S. Ganicheva ◽  
V.M. Zhuikov ◽  
...  
Keyword(s):  
Public Policy ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Recognition And Enforcement

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 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».

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.

9 The Enforcement of Arbitral Awards

2020 ◽  
Author(s):  
Oda Hiroshi
Keyword(s):  
Public Order ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Recognition And Enforcement ◽  
The Law ◽  
The Way

This concluding chapter explores the enforcement of arbitral awards. There are two primary laws relevant to the recognition and enforcement of arbitral awards of international commercial arbitration in Russia: the Law on International Commercial Arbitration of 1993 and the Code of Commercial Court Procedure of 2002. The former has the basic provision on the recognition and enforcement of awards and the grounds for refusal, while the latter provides for the procedural aspects of recognition and enforcement of arbitral awards. It is an established principle of international commercial arbitration that in deciding whether enforcement of awards is allowed or not, courts are not entitled to review the case on its merits. However, Russian judges are not always aware of this fundamental rule, or do not comply with it. The chapter then looks at the grounds for the refusal of recognition and enforcement of arbitral awards and the way Russian courts interpret these grounds. Particularly important is the understanding of public order by Russian courts. Finally, the practice of ‘Russian Torpedo’ is discussed.

Part V International Dispute Resolution, 19 International Commercial Arbitration

2015 ◽  
Keyword(s):  
Dispute Resolution ◽  
Commercial Arbitration ◽  
Conflict Of Laws ◽  
International Commercial Arbitration ◽  
National Courts ◽  
International Dispute ◽  
Recognition And Enforcement ◽  
Model Law ◽  
The Relationship ◽  
Distinguishing Features

This chapter examines the nature of international commercial arbitration and its distinguishing features; the harmonisation of the law of international commercial arbitration; international arbitration and the conflict of laws; the review of arbitral awards; and the recognition and enforcement of arbitral awards. Consideration is given to the contribution made by the UNCITRAL Model law on International Commercial Arbitration and to the rules of various arbitral institutions (such as the ICC) to the harmonisation of arbitral law and practice. Also examined is the relationship between arbitration and national courts and national law, particularly in the context of the debate over delocalisation.

Part 2 Determining the Applicable Attorney–Client Privilege Standard, 8 Applicable Privilege Standard in International Commercial Arbitration

2017 ◽  
Author(s):  
Möckesch Annabelle
Keyword(s):  
New York ◽  
Legal Framework ◽  
Equal Treatment ◽  
Common Denominator ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Mandatory Rules ◽  
Recognition And Enforcement ◽  
New York Convention

This chapter contains an analysis of the most appropriate way to determine the applicable attorney–client privilege standard in international commercial arbitration. To this end, this chapter deals with the characterization of privilege as substantive or procedural, the legal framework for attorney–client privilege in international commercial arbitration, international mandatory rules of law, and the enforcement regime under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. Against this background, the chapter includes an analysis of the possible approaches to determining the privilege standard. These include the application of general principles of law, the application of a single national law determined through a choice-of-law approach such as the closest connection test, the cumulative application of several national laws, and the creation of an autonomous standard defining the scope of attorney–client privilege. Lastly, the chapter examines whether corrective measures, such as the lowest common denominator approach or the most protective rule, are needed to ensure equal treatment of the parties and fairness of the proceedings. This chapter concludes with key findings on how to determine the applicable attorney–client privilege standard in international commercial arbitration.

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