Arbitration Ex Aequo et Bono and Its Limits - Chapter 3 - International Arbitration Ex Aequo et Bono/Amiable Composition
3.1 PUBLIC POLICY
Public policy in international arbitration is a prolific and complex topic. In spite of the extensive bibliography, its definition and reach are far from being unanimous. It is not the purpose of this work to discuss in detail the different concepts of public policy. In principle, its characterization as a set of fundamental values of a society, its national and international levels and its function as “state filter” for the application of the law or recognition of foreign acts seem to be sufficient for the purposes of this work.
In that depiction, the effects of the public policy for international arbitration will have special importance within the perspective of the “delocalization” of the arbitration.
3.1.1 The Operational Levels of Public Policy
The public policy is usually divided between domestic and international public policies. However, the authors of private international law seem to converge nowadays in the characterization of public policy as an emanation of state law, with different scopes. It is a single phenomenon, with operation levels in relation with the domestic law and in relation with the application of foreign rules. The domestic public policy deals about the rules that may not be derogated by agreement of the parties. Its field of operation is equivalent to what the legal theory refers to as imperative, cogent, non-derogable and other synonyms. The international public policy deals with the prohibition of effects of certain foreign rules, judgements or transactions for containing provisions unacceptable for the domestic legal system. Such levels represent the gradation of the interference of the domestic positive law in acts between private entities or foreign rules.
 In this aspect, it may be concluded, following Jacob Dolinger, that there not exactly laws of public policy, but rather a general principle of law that prohibits certain covenants. The rules per se shall not be classified as rules of public policy or not. They may or may not contain aspects of the legal and moral principles of the venue that may not be derogated by private covenants or even by the application of the foreign law (Dolinger, Jacob. A evolução da ordem pública no direito internacional privado. Rio de Janeiro, 1979, p. 9-10. Mimeographed).
 For a summary of scholars’ opinions, Dolinger, Jacob. A evolução da ordem pública no direito internacional privado, cit., p. 1-49, e Direito internacional privado, cit.,, p. 323 et seqq. Also Ramalho Almeida, Ricardo. Arbitragem comercial internacional e ordem pública. Rio de Janeiro: Renovar, 2005. p. 24 et seqq.