Naslov
Certain aspects of public policy in enforcement of foreign arbitral awards

Autori
Gumzej, Nina

Izvornik
Croatian arbitration yearbook (1330-6219) 10 (2003); 39-98

Vrsta, podvrsta i kategorija rada
Radovi u časopisima, članak, znanstveni

Ključne riječi
substantive public policy ; New York Convention on Recognition and Enforcement of Foreign Arbitral Awards

Sažetak
Article V(2)(b) of the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (NYC) provides that enforcement of a foreign award may be denied if it would violate forum's public policy. The object of this paper was to first examine which issues have been invoked before courts as public policy matters and then the approach used by courts to establish if these are indeed of public policy value, and if they are, under which circumstances they could hinder enforcement of the award. While the contents of public policy may generally be classified into two main categories, i.e., substantive and procedural, the analysis of the latter was excluded from this paper. The analysis of substantive public policy began with a general focus on public policy rules, which were further examined according to their specific concerns. It was concluded that enforcement of the award may be barred, in the appropriate circumstances, if one such public policy rule were violated by enforcement. Issues concerning forum's mandatory rules on rate of interest and prohibition of compound interest were generally not found to pertain to public policy. Certain countries however, strongly attach matters of interest to public policy and their standpoint was disclosed. Enforcement of penal interest and punitive damages that are prohibited or not recognized in the forum state are matters pertaining to public policy. However, their current public policy value or strength under the NYC is not conclusive. The issue of enforcement of certain illegal obligations was approached from their predominantly immoral nature. While it is generally held that the awards giving effect to activities that are regarded as immoral (and illicit) world-wide would not be enforced, the criteria to be satisfied by the party claiming illegality may vary from very strict to liberal in different jurisdictions and the courts employ diverse standards of review to establish such violations when they are not evident prima facie. The last substantive issue examined was that of unjust enrichment caused by enforcement of the award, and this was found to be of public policy concern in some jurisdictions. Following the analysis of substantive public policy, special focus was made on two "particular" categories of public policy, i.e., one that is regional and the other universal in nature, both of which may combine the general substantive and procedural public policy aspects. Contents of a regional, European public policy are being integrated into the EU Member States' domestic public policies. A brief overview of basic EU legal doctrines aimed to explain the procedural safeguards for observance of EU law in the Member States. Rules of public policy originating in the EU legal order were next examined mostly from the viewpoint of their public policy value under the NYC. Apart from the EU competition law rules, no other rules of such value were determined to date, even though some suggestions for their identification were disclosed. Next followed an analysis of judicial review over the EU competition law rules. An attempt was next made to determine the compatibility of the principles established under the NYC, especially that of a limited judicial review over the award, and the procedural principles mandating an effective application of EU law. It was concluded that the compatibility of these principles is satisfactory, in appropriate circumstances. The second specific category of public policy that was briefly approached at the end of the paper is not regional, but universal, i.e., transnational public policy. In view of the fact that the focus in this paper was made on enforcement proceedings under the NYC, where public policy comprises values embraced in the forum state only, this concept was held to lack merit de lege lata if employed exclusively under article V(2)(b) of the NYC.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

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