Public Policy as Grounds for Annulment of or Non-Recognition or Enforcement of Arbitral Awards in East Asia - Chapter 10 - International Arbitration and Public Policy

Author(s): 

Michael Hwang

Shaun Lee

Page Count: 

38 pages

Media Description: 

1 PDF Download

Published: 

October, 2014

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Originally from International Arbitration and Public Policy

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I. INTRODUCTION

Winning the arbitration is merely the first stage in the enforcement of

the claimant’s rights. The next is actually enforcing that particular award.

Conversely, for a losing party, an unfavourable award is not necessarily

the end of the line. An award can still be annulled or set aside by the

court with primary curial jurisdiction and even a court with secondary

enforcing jurisdiction can decide whether to enforce an arbitral award.

 

Annulment, recognition, and enforcement of arbitral awards are

subject to the provisions of the New York Convention on the

Recognition and Enforcement of Foreign Arbitral Awards 1958 (“New

York Convention” or “NYC”) and the forum’s arbitration legislation. In

turn, national arbitration legislation is increasingly based on the

UNCITRAL Model Law on International Commercial Arbitration

(“Model Law” or “ML”).

 

Of all the grounds available to the court to vacate or to refuse to

recognize or enforce an arbitral award, no other ground is as problematic

as that of public policy, which remains undefined in both the New York

Convention and the Model Law and provides a basis for courts to manifest

judicial hostility or simple parochialism against arbitration. Such an

approach would undermine the raison d’être behind the New York

Convention and the Model Law in promoting arbitration as an alternative

to litigation. Public policy could then threaten to transform arbitration into

nothing more than a simple prelude to extensive litigation.