Scope of Review in Annulment Proceedings - Chapter 9 - International Arbitration and Public Policy

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October, 2014

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I. THE DEVELOPMENT OF INTERNATIONAL
ARBITRATION

It is a common observation that international arbitration has

become world-wide the most widespread method of dispute resolution,

mostly due to the liberalisation that has marked its development during

the last thirty years. This trend has been favoured by the attitude of

State courts, more and more receptive to the idea that the autonomy of

international arbitration is not merely to be tolerated but rather to be

encouraged by eliminating obstacles to its full development. Obstacles

such as the written form of the arbitration agreement, arbitrability of

disputes in the international context, State courts’ interference, State’s

immunity from jurisdiction (sometimes even from enforcement), and

still others have been largely removed, thus enhancing the autonomy of

the system.

In a context marked by the utmost liberalisation and full

development of this method of dispute settlement, public policy has

been held to constitute “le seul ilôt de résistance à l’autonomie de

l’arbitrage international”.1 Reference might rather be made to public

policy as the ultimate means of control by a State regarding an award

which aspires to be given effect in its territory but which might conflict

with its fundamental principles and values. Thanks to public policy,

therefore, international arbitration undergoes a measure of control by

States regarding the arbitrator’s product, the award. This control is also

in the interest of the business community which is presumed to share

the same principles and values protected by States’ public policy.