Taming the unruly horse? The New York convention’s public policy exception to the enforcement of arbitral awards

Jo-Mei Ma, Helena Hsi-Chia Chen

Research output: Chapter in Book/Report/Conference proceedingChapterResearchpeer-review

Abstract

Courts worldwide may refuse to enforce arbitral awards if such enforcement would be contrary to the public policy of their countries. This is known as “the public policy exception” to the enforcement of arbitral awards. It is enshrined in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 and UNCITRAL Model Law on International Commercial Arbitration 1985, which are two of the most prominent international instruments concerning arbitration. The International Law Association’s Resolution on Public Policy as a Bar to Enforcement of International Arbitral Awards 2002 endorses a narrow approach to the public policy exception, such as non-enforcement only in exceptional circumstances of public policy violation. Such a narrow approach arises from the New York Convention’s pro-enforcement policy of upholding the finality and enforceability of arbitral awards. Yet judicial inconsistency and unpredictability in applying the public policy exception persist. Public policy remains likened to an “unruly horse” which may lead us from sound law (Richardson v Mellish [1824–1834] All ER 258, 266.). This chapter explores some remaining controversies and complexities in applying the public policy exception in selected Western and Eastern countries. By examining the mutual influence between these countries, this chapter makes some recommendations on when and how the courts may swim against the tide by departing from the currently prevailing narrow approach to the public policy exception. For instance, such departure may be appropriate where the arbitral award’s enforcement would cause or condone injustice so as to undermine the integrity of the arbitration system. The unruly horse of public policy and its application can, and must, “come down on the side of justice” (Enderby Town Football Club Ltd v The Football Association Ltd [1971] Ch. 591, 607).
Original languageEnglish
Title of host publicationLegal Thoughts between the East and the West in the Multilevel Legal Order
Subtitle of host publicationA Liber Amicorum in Honour of Professor Herbert Han-Pao Ma
EditorsChang-fa Lo, Nigel N. T. Li, Tsai-yu Lin
PublisherSpringer
Pages575-595
Number of pages21
ISBN (Electronic)978-981-10-1995-1
ISBN (Print)978-981-10-1994-4
DOIs
Publication statusPublished - 12 Nov 2016

Publication series

NameEconomics, Law, and Institutions in Asia Pacific
PublisherSpringer Singapore
ISSN (Print)2199-8620

Fingerprint

public policy
arbitration
finality
Law
club
international law
integrity
town
justice
cause

Cite this

Ma, J-M., & Chen, H. H-C. (2016). Taming the unruly horse? The New York convention’s public policy exception to the enforcement of arbitral awards. In C. Lo, N. N. T. Li, & T. Lin (Eds.), Legal Thoughts between the East and the West in the Multilevel Legal Order: A Liber Amicorum in Honour of Professor Herbert Han-Pao Ma (pp. 575-595). (Economics, Law, and Institutions in Asia Pacific). Springer. https://doi.org/10.1007/978-981-10-1995-1_33
Ma, Jo-Mei ; Chen, Helena Hsi-Chia. / Taming the unruly horse? The New York convention’s public policy exception to the enforcement of arbitral awards. Legal Thoughts between the East and the West in the Multilevel Legal Order: A Liber Amicorum in Honour of Professor Herbert Han-Pao Ma. editor / Chang-fa Lo ; Nigel N. T. Li ; Tsai-yu Lin. Springer, 2016. pp. 575-595 (Economics, Law, and Institutions in Asia Pacific).
@inbook{11414d5991a3467e859e18d831b15249,
title = "Taming the unruly horse? The New York convention’s public policy exception to the enforcement of arbitral awards",
abstract = "Courts worldwide may refuse to enforce arbitral awards if such enforcement would be contrary to the public policy of their countries. This is known as “the public policy exception” to the enforcement of arbitral awards. It is enshrined in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 and UNCITRAL Model Law on International Commercial Arbitration 1985, which are two of the most prominent international instruments concerning arbitration. The International Law Association’s Resolution on Public Policy as a Bar to Enforcement of International Arbitral Awards 2002 endorses a narrow approach to the public policy exception, such as non-enforcement only in exceptional circumstances of public policy violation. Such a narrow approach arises from the New York Convention’s pro-enforcement policy of upholding the finality and enforceability of arbitral awards. Yet judicial inconsistency and unpredictability in applying the public policy exception persist. Public policy remains likened to an “unruly horse” which may lead us from sound law (Richardson v Mellish [1824–1834] All ER 258, 266.). This chapter explores some remaining controversies and complexities in applying the public policy exception in selected Western and Eastern countries. By examining the mutual influence between these countries, this chapter makes some recommendations on when and how the courts may swim against the tide by departing from the currently prevailing narrow approach to the public policy exception. For instance, such departure may be appropriate where the arbitral award’s enforcement would cause or condone injustice so as to undermine the integrity of the arbitration system. The unruly horse of public policy and its application can, and must, “come down on the side of justice” (Enderby Town Football Club Ltd v The Football Association Ltd [1971] Ch. 591, 607).",
author = "Jo-Mei Ma and Chen, {Helena Hsi-Chia}",
year = "2016",
month = "11",
day = "12",
doi = "10.1007/978-981-10-1995-1_33",
language = "English",
isbn = "978-981-10-1994-4",
series = "Economics, Law, and Institutions in Asia Pacific",
publisher = "Springer",
pages = "575--595",
editor = "Chang-fa Lo and Li, {Nigel N. T.} and Tsai-yu Lin",
booktitle = "Legal Thoughts between the East and the West in the Multilevel Legal Order",
address = "Germany",

}

Ma, J-M & Chen, HH-C 2016, Taming the unruly horse? The New York convention’s public policy exception to the enforcement of arbitral awards. in C Lo, NNT Li & T Lin (eds), Legal Thoughts between the East and the West in the Multilevel Legal Order: A Liber Amicorum in Honour of Professor Herbert Han-Pao Ma. Economics, Law, and Institutions in Asia Pacific, Springer, pp. 575-595. https://doi.org/10.1007/978-981-10-1995-1_33

Taming the unruly horse? The New York convention’s public policy exception to the enforcement of arbitral awards. / Ma, Jo-Mei; Chen, Helena Hsi-Chia.

Legal Thoughts between the East and the West in the Multilevel Legal Order: A Liber Amicorum in Honour of Professor Herbert Han-Pao Ma. ed. / Chang-fa Lo; Nigel N. T. Li; Tsai-yu Lin. Springer, 2016. p. 575-595 (Economics, Law, and Institutions in Asia Pacific).

Research output: Chapter in Book/Report/Conference proceedingChapterResearchpeer-review

TY - CHAP

T1 - Taming the unruly horse? The New York convention’s public policy exception to the enforcement of arbitral awards

AU - Ma, Jo-Mei

AU - Chen, Helena Hsi-Chia

PY - 2016/11/12

Y1 - 2016/11/12

N2 - Courts worldwide may refuse to enforce arbitral awards if such enforcement would be contrary to the public policy of their countries. This is known as “the public policy exception” to the enforcement of arbitral awards. It is enshrined in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 and UNCITRAL Model Law on International Commercial Arbitration 1985, which are two of the most prominent international instruments concerning arbitration. The International Law Association’s Resolution on Public Policy as a Bar to Enforcement of International Arbitral Awards 2002 endorses a narrow approach to the public policy exception, such as non-enforcement only in exceptional circumstances of public policy violation. Such a narrow approach arises from the New York Convention’s pro-enforcement policy of upholding the finality and enforceability of arbitral awards. Yet judicial inconsistency and unpredictability in applying the public policy exception persist. Public policy remains likened to an “unruly horse” which may lead us from sound law (Richardson v Mellish [1824–1834] All ER 258, 266.). This chapter explores some remaining controversies and complexities in applying the public policy exception in selected Western and Eastern countries. By examining the mutual influence between these countries, this chapter makes some recommendations on when and how the courts may swim against the tide by departing from the currently prevailing narrow approach to the public policy exception. For instance, such departure may be appropriate where the arbitral award’s enforcement would cause or condone injustice so as to undermine the integrity of the arbitration system. The unruly horse of public policy and its application can, and must, “come down on the side of justice” (Enderby Town Football Club Ltd v The Football Association Ltd [1971] Ch. 591, 607).

AB - Courts worldwide may refuse to enforce arbitral awards if such enforcement would be contrary to the public policy of their countries. This is known as “the public policy exception” to the enforcement of arbitral awards. It is enshrined in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 and UNCITRAL Model Law on International Commercial Arbitration 1985, which are two of the most prominent international instruments concerning arbitration. The International Law Association’s Resolution on Public Policy as a Bar to Enforcement of International Arbitral Awards 2002 endorses a narrow approach to the public policy exception, such as non-enforcement only in exceptional circumstances of public policy violation. Such a narrow approach arises from the New York Convention’s pro-enforcement policy of upholding the finality and enforceability of arbitral awards. Yet judicial inconsistency and unpredictability in applying the public policy exception persist. Public policy remains likened to an “unruly horse” which may lead us from sound law (Richardson v Mellish [1824–1834] All ER 258, 266.). This chapter explores some remaining controversies and complexities in applying the public policy exception in selected Western and Eastern countries. By examining the mutual influence between these countries, this chapter makes some recommendations on when and how the courts may swim against the tide by departing from the currently prevailing narrow approach to the public policy exception. For instance, such departure may be appropriate where the arbitral award’s enforcement would cause or condone injustice so as to undermine the integrity of the arbitration system. The unruly horse of public policy and its application can, and must, “come down on the side of justice” (Enderby Town Football Club Ltd v The Football Association Ltd [1971] Ch. 591, 607).

U2 - 10.1007/978-981-10-1995-1_33

DO - 10.1007/978-981-10-1995-1_33

M3 - Chapter

SN - 978-981-10-1994-4

T3 - Economics, Law, and Institutions in Asia Pacific

SP - 575

EP - 595

BT - Legal Thoughts between the East and the West in the Multilevel Legal Order

A2 - Lo, Chang-fa

A2 - Li, Nigel N. T.

A2 - Lin, Tsai-yu

PB - Springer

ER -

Ma J-M, Chen HH-C. Taming the unruly horse? The New York convention’s public policy exception to the enforcement of arbitral awards. In Lo C, Li NNT, Lin T, editors, Legal Thoughts between the East and the West in the Multilevel Legal Order: A Liber Amicorum in Honour of Professor Herbert Han-Pao Ma. Springer. 2016. p. 575-595. (Economics, Law, and Institutions in Asia Pacific). https://doi.org/10.1007/978-981-10-1995-1_33