Interpretation of International Conventions - Chapter 2 - 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 question is how the public policy exception of the New York Convention is to be interpreted. A Convention imposes certain obligations on the States who became a party to such convention either by ratification,1 accession,2 or succession.3 This is also true for the New York Convention.4
The Vienna Convention on the Law of Treaties of May 23, 1969 (Vienna Treaty Convention)5 was entered into force on January 27, 1980, and it governs how conventions and treaties are to be interpreted. The Vienna Treaty Convention contains in Part III Section 3 rules for the interpretation of treaties (Article 31-33). However, the Vienna Treaty Convention applies only to treaties which are concluded after the Vienna Treaty Convention became effective with respect to such States (Article 4). Therefore, the rules of the Vienna Treaty Convention are not directly applicable for the interpretation of the New York Convention. However, the Preamble of the Vienna Treaty Convention reaffirms that the rules of customary international law6 will continue to govern questions not regulated by the provisions of the Convention. What are the rules of customary international law for the interpretation of conventions and treaties?
The answer is rather simple. The Vienna Treaty Convention only codifies the rules of customary international law with respect to the observance, application, and interpretation of treaties and conventions.7