Multi-Jurisdictional Perspectives to Public Policy Defence in Recognition and Enforcement of Foreign Arbitral Awards - Have the UNCITRAL, ECOSOC and ICC Lived up to Their Traditional Role of Fostering International Trade?
Published 4 January 2022
A controversial but important issue facing international commercial arbitration is how domestic courts interpret the public policy defence under Article V(2)(b) of the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (“the Convention”). This work examines the practicality of achieving a global consensus on uniform parameters for the public policy defence to the recognition and enforcement of foreign arbitral awards. It further examines whether the United Nation agencies like the United Nations Commission on International Trade Law (UNCITRAL), United Nations Economic and Social Council (ECOSOC) and other international organizations like the International Chamber of Commerce (ICC) have lived up to their traditional responsibility of driving the much needed conversation that could set the pace towards achieving an appreciable degree of certainty and predictability around the public policy defence in the Convention. Firstly, I examined the historical background to Article V (2) (b) of the Convention with the aim of determining whether the present multi-jurisdictional perspectives on the defence was intended. Secondly, I examined the practicality of achieving a harmonised global approach to the defence and whether a transnational public policy (otherwise known as supranational public policy), can effectively serve as a common global standard for determining the public policy defence. I found that a unified global approach to the public policy defence was intended as state parties to the Convention were not expected to approach the defence based on the dictates and idiosyncrasies of their local laws and circumstances. I also found that transnational public policy can effectively serve as a unified global standard for determining the defence. I therefore concluded that the UNCITRAL, ECOSOC and ICC ought to drive the much-needed global conversation for appropriate reform that would address the obvious anomaly and that they have not lived up to their traditional responsibility in this regard. I consequently called on the UNCITRAL, ECOSOC and ICC to rise to the occasion by setting the pace for the desired reform within a record time as this will address the present situation where the Convention is bedeviled by the same problem it was designed to solve.