At first glance, the relationship between the “public policy” and “due process” exceptions under Articles V(1)(b) and V(2)(b) of the New York Convention is unclear. Several national courts have found that the two provisions intersect with one another, despite the ambiguity. Often overlooked, this analysis questions at a theoretical level each provision’s scope while highlighting the contrasting reasons for including each one into the Convention’s final text. This article also seeks to discern whether, when addressing questions of enforcement or recognition of a foreign arbitral award with notions of “due process,” there is any legitimate reason to exclude Article V(2)(b) from the purview of Article V(1)(b), and whether this contention should give rise to any patentable concerns.

 

 

When the phrase “due process” is mentioned, a bell chimes in the minds of most lawyers. Many countries’ national standards, whether coined as due process, natural justice, principe du contradictoire, rechtliches Gehör, or some equivalent variation, incorporate this notion into their fundamental laws. But within the realm of international arbitration and the New York Convention, what does “due process” mean? The term itself never appears in the text of the Convention, yet even the untrained reader intuitively understands the due process mechanism defenses at play with respect to recognition or enforcement of foreign arbitral awards: Articles V(1)(b),3 V(1)(d), and V(2)(b). The problem is that in many jurisdictions, the principle of due process is to some degree related to public policy. However, there lies an evidentiary demarcation: while Article V(1)(b) places the burden of proving a due process violation on the party alleging the defense, Article V(2)(b) permits a country’s courts to review and refuse recognition or enforcement of the award ex officio, or on its own motion.