Originally from World Arbitration And Mediation Review (WAMR)

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ARBITRABILITY AND PUBLIC POLICY

Gary Born∗

I. INTRODUCTION

I will address the role of non-arbitrability and public policy in
international commercial arbitration under the New York
Convention. In many ways, these two doctrines are the most
national, and the least international, grounds for refusing
enforcement of arbitral awards under the New York Convention’s
regime. I say that because, if we look at Article V(2)(a), which
deals with non-arbitrability, and Article V(2)(b), which deals with
public policy, each one contains within it a choice of law or, as the
case may be, public policy rule.1 Each of those two provisions
refers to the law or the public policy of the recognition forum, the
forum in which an international arbitral award is sought to be
enforced. In each instance, the courts of the recognition forum
may exceptionally rely on their own national law with regard to
non-arbitrability on the one hand, and public policy on the other
hand, in order to escape from the otherwise applicable
international obligation to recognize the award. This is, therefore,
the most pointed instance in which the New York Convention
confronts national sovereignty by preserving escape valves for
national courts to invoke their own laws to retreat from
international obligations.

But the really interesting thing about my two topics is that
they do not, in fact, play a very important role in international
practice. When one reviews the list of cases that have been
decided, particularly in major and not-so-major trading states,
very few decisions conclude that particular topics are nonarbitrable
on the one hand, or deny recognition on public policy
grounds on the other hand. Although states might arguably take
refuge in broad interpretations of Articles V(2)(a) and V(2)(b),
they have not done so.