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IBA study on public policy as a defence to recognition and enforcement of awards
Practical Law UK Legal Update 5-619-5659 (Approx. 3 pages)
IBA study on public policy as a defence to recognition and enforcement of awards
| Published on 21 Oct 2015 • International |
The International Bar Association (IBA) has published the results of its comparative study on public policy as a defence to the recognition and enforcement of arbitral awards under the New York Convention.
The International Bar Association (IBA) Subcommittee on Recognition and Enforcement of Arbitral Awards has published the results of its comparative study on public policy as a defence to the recognition and enforcement of awards under the New York Convention.
During 2014 and 2015, the subcommittee obtained reports from arbitration committee members from over 40 jurisdictions on the treatment of public policy by the domestic courts in this context .The results of this project are set out in a general report and separate country reports. Key findings in the general report include:
- Of the jurisdictions covered, only in the UAE and Australia is 'public policy' statutorily defined.
- In some jurisdictions, the notion of public policy is uniformly defined regardless of whether the contravention of public policy was raised as a defence against enforcement or as a ground for setting aside an award. In other jurisdictions, for example Portugal, there are nuances in how it is defined.
- Many countries draw a distinction between domestic public policy and international (or even transnational) public policy.
- In general, domestic courts have difficulty defining the meaning and the scope of public policy and it is expressed differently by civil and common law courts.
- The courts of most countries tend to construe a violation of public policy narrowly.
The general report also examines the manifestations of a violation of public policy, divided into two sections - procedural public policy and substantive public policy. Procedural public policy, which includes principles such as the right to be heard or due process, fraud or corruption in the arbitral process, res judicata and the independence of arbitrators, accounts for the majority of cases where recognition or enforcement of a foreign arbitral award was denied under Article V(2)(b) of the New York Convention.
The country reports explain how the notion of public policy is defined by domestic courts in their jurisdiction, including relevant case law.
The study is ongoing and the subcommittee also aims to identify trends in the definition of public policy by commercial and investment arbitral tribunals.