Conclusion - Chapter 7 - Public Policy Exception Under The New York Convention: History, Interpretation, and Application
Dr. Anton G. Maurer, LL.M. has been actively involved in international arbitration for more than 20 years, concentrating on commercial, post M&A, and corporate disputes, and the enforcement of foreign arbitral awards. He is also actively involved in international litigation and has been professionally involved in disputes in more than 55 countries and in over 80 jurisdictions. He graduated with a law degree as well as a PhD in public international law from the University of Tübingen, Germany, and a Master of Laws in U.S. and Global Business Law from Suffolk University, Boston, MA.
Anton Maurer has been a Partner with CMS Hasche Sigle since 1987. He started his career with Sigle Loose Schmidt Diemitz & Partners in Stuttgart, Germany and then worked as a foreign attorney with Johnson & Swanson in Dallas, Texas. He currently serves on the board of directors of the International Association of Defense Counsel; as Chair of the Advisory Board of The Southwestern Institute for International and Comparative Law; and, as a member of the Advisory Board of the Institute for Transnational Arbitration, and the Board of Trustees, all with the Center for American and International Law, Plano, Texas.
The New York Convention made enforcement of foreign arbitral awards generally considerably easier, but still there is an obvious lack of uniformity.
Albert Jan van den Berg argues that public policy defense rarely causes enforcement to be refused. He thinks that one reason for this is the distinction drawn between domestic and international public policy, for what is considered public policy in domestic relations does not necessarily constitute public policy in international relations. Hence, the number of matters considered as falling under public policy in international cases is smaller than in domestic ones. This distinction is justified by the deferring purposes of domestic and international relations, and it is gaining increasing acceptance by the courts in cases falling within the scope of the New York Convention.1 Karl-Heinz Böckstiegel argues that public policy plays a greater role in the theory of arbitration than in practice.2 Both statements are statistically true if one looks at the number of judgments where enforcement of foreign arbitral awards was refused, especially in Europe and in North America. About 1,700 court decisions have been reported on the interpretation and application of the New York Convention in the first 36 volumes of the Yearbook of Commercial Arbitration. Approx. half of these decisions concern the enforcement of arbitral awards. There were thus around 850 enforcement decisions out of which some 70 refused enforcement of the award. A score of less than 10 percent can be considered to be a successful achievement for an international convention.3 However, if one would count all reported judgments where the aggrieved party opposed recognition and enforcement based on a public policy exception, then this ground plays also a great role in practice. Several commentators correctly call the public policy exception under Art. V (2) (b) the probably "most misused ground for non-enforcement at all".4