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

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).