Originally from Defeating and Defending Awards: Arbitrability, Public Policy, and Global Court Practice

PREVIEW

7.1        Introduction

As discussed in Chapter 1 Introduction: The Thesis Narrative, the start of this research project began only with public policy. However, as the research developed the public policy notion naturally acquired another tentacle – arbitrability. Initially, it was thought that arbitrability fell under the umbrella of public policy, and that inarbitrability was a condition of public policy in not allowing an issue to be arbitrated – for reasons of public interest and public protection – and hence was reserved for the exclusive jurisdiction of the courts. This preliminary understanding was discovered to be only a part of the picture, and there was a wider scene to be appreciated in international commercial arbitration, in particular under the scheme of the New York Convention 1958. Chapter 4 The Swamp of Arbitrability explored the question of arbitrability in its concepts and context. Chapter 5 US Arbitrability: A Gateway Issue, a Matter of Jurisdiction dealt with an outlier of arbitrability with the American concept, while Chapter 6 Public Policy and Arbitrability under the New York Convention 1958 and the UNCITRAL Model Law, delved into the defences of arbitrability and public policy in terms of the statutory provisions; namely, Article V(2)(a) and Article V(2)(b) of the New York Convention 1958 and its supporting provisions under the Model Law.

As the research project evolved, when scrutinising public policy and arbitrability, the questions that arose in a compelling construct was: Is there a correlation between these two concepts? What are the issues that link these two notions? How do they relate to one another? The answers to these questions became the glue that connects the concepts of public policy and arbitrability. Was it only by chance that arbitrability had its own provision under the New York Convention 1958? If arbitrability is part of public policy or is a limitation of public policy, why was it not included under the public policy exception provision? The drafters set out seven defences to the recognition and enforcement of arbitral awards, two separate defences for public policy and arbitrability, even if their motives were not entirely clear at the time. The defences were intended to be exhaustive and very limited. The restrictiveness of these defences was an important factor and an innovative point during the drafting of the treaty at that time.

There are reasons for inarbitrability to stand separately from the public policy exception. What links these two defences and what separates them are issues of interest that deserve further work. It became clear that Sub-Research Enquiry A8: The Correlation between Public Policy and Arbitrability, deserves its place within this research project. Consequently, this chapter of the text aims to explore those corresponding motives between these two concepts. It is the thread that stitches these concepts together, in answering Research Questions A and B. It also provides a good explanation for why the case law involving arbitrability and public policy may be grouped together in answering Research Question C in Chapter 8 Gathering the Data, Analysis, and Understanding the Results.

This chapter will analyse and discuss the issues surrounding the area to find some answers. After investigative work, it became apparent that the subject matters to be addressed, and those specific areas that require discussion are:

•  The Legislatures and the Judiciaries (Section 7.2);

•  The Overlap amid Mandatory Laws and Public Policy (Section 7.3);

•  Public Policy as a Limitation on Arbitrability (Section 7.4);

•  Arbitrability as a Matter of Public Policy (Section 7.5), and

•   New York Convention 1958 and Mandatory Law (Section 7.6).