The Public Policy In Recognition And Enforcement Of Arbitral Awards In International Commercial Arbitration

As a major theory in private international law area, public policy is a way to refuse toapply foreign law, recognize and enforce foreign judgment and arbitral awards. It is providedin Article5of “Convention on the Recognition and Enforcement of Foreign Arbitral Awards”(“New York” Convention) that Recognition and enforcement of an arbitral award may also berefused if the competent authority in the country where recognition and enforcement is soughtfinds that the recognition or enforcement of the award would be contrary to the public policy.However, there is no clear definition and applicable standard in this convention to applypublic policy. Every state can illustrate public policy by itself based on its own situation. Butthere are tons of differences in each country, such as economy, politics and morals and all thefactors would lead to distinct understandings on public policy. Undoubtedly, there will bemore uncertainties in the area of recognition and enforcement of arbitral awards. Thoughthere has no serious problem arisen yet from the implementation of the “New YorkConvention”, public policy as a “double-edged sword” is likely to help the losing partypostpone the enforcement of arbitral awards. In order to improve the recognition andenforcement of arbitral awards, International Commercial Arbitration Commission ofInternational Law Association has adopted “Final Report on Public Policy as a Bar toEnforcement of International Arbitral Awards” in New Delhi meeting by2002. The finalreport clearly put forward the concept of international public policy and defined its scope.And it also gave some suggestions on how to understand and apply the public policy. Inpractice, states should draw the legislative proposals of final report to apply public policyproperly. This is the point of this thesis.In addition to the introduction and conclusion parts, this thesis is divided into four parts:The first part introduces the definition of public policy in international commercialarbitration area, including the respects of states and New York Convention.The second part analyzes how to identify the public policy in international commercialarbitral awards area. And this part divides public policy into procedural public policy andsubstantial public policy. For procedural public policy, it includes unavailability of arbitralmatters in disputes. the ruling is not accompanied by reasons, the arbitral proceeding is unfairas well as the parties apparently ignore the law. For substantive public policy, it includes theviolation of mandatory rules, obvious violating basic principles of law, violating legal matters in contract area and violating foreign policy may now constitute a violation of public policy.The third part illustrates the public policy in civil law and common law systems. And thethesis gives some introduction of public policy on ASEAN countries, including Singapore,Indonesia, Vietnam and Thailand.The forth part sums up China’s legislative and judicial practice and tries to find a betterway to improve the application of public policy in China. There are a lot of problems in theapplication of public policy, such as the inconsistent connotation of public policy in China’slegislation and the serious local protectionism in China’s judicial practice. And this thesis putsforwards the harmonization of the legislations, distinguish of international public policy anddomestic public policy, and the application of doctrine to improve China’s commercialarbitration system.