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An Introduction to International Public Policy - Chapter 1 - International Arbitration and Public Policy

Author(s): 
Lord Goldsmith Q.C.
Page Count: 
6 pages
Media Description: 
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Published: 
October, 2014

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Originally from International Arbitration and Public Policy

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In 1824, Mr. Mellish was sued by Captain Richardson for having
reneged on a promise to reinstate him as master of the ship “Minerva”.
His agreement was based on a complicated arrangement with Mr.
Mellish who wanted to advance his nephew, Captain Mills, by giving
him the command which previously Captain Richardson had held. As in
all rigorously contested litigation, Mr. Mellish raised a number of
defences − i.e., that the contract was not binding, that the evidence was
wrongly admitted, that damages had been wrongly assessed, and, finally,
that the contract was against public policy. Selling the command of
important vessels was against the public policy of the day, apparently.
The court, presided over by the Chief Justice of the day, rejected even
that defence. In his judgment, Burrough J used the phrase which
resonates now with every English lawyer confronted with a public policy
argument:
 
I … protest against arguing too strongly upon public policy – it
is a very unruly horse and once you get astride it, you never
know where it will carry you … .” And he went on: “It may lead
you from a sound law. It is never argued at all but whenever
other points fail.1
 
This seems to me as good a starting point as any for the
consideration of public policy in the world of arbitration: it illustrates
that whilst a resort to public policy may prevent the enforcement of an
obligation that would otherwise lie, there are dangers in a court too
readily allowing such an approach and that this is often the last resort
defence of the unwilling debtor. And despite that sonorous demolition of
public policy as a defence, it remains an important part of English law, as
of many other systems of law.