Interpretation of International Conventions - Chapter 2 - The Public Policy Exception under the New York Convention: History, Interpretation and Application - Second Edition
Dr. Anton G. Maurer, LL.M., FCIArb has been actively involved in international arbitration for more than 30 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 or transactions in more than 65 countries and in over 90 jurisdictions. He graduated with a law degree as well as a PhD in public international law from the University of Tübingen, Germany, a Master of Laws in U.S. and Global Business Law from Suffolk University, Boston, MA, and a CIArb Diploma in International Arbitration.
Anton Maurer is an independent arbitrator, and the managing director of Anton Maurer International Legal Services GmbH which is seated in St. Moritz, Switzerland, and Anton Maurer International Legal Services Rechtsanwaltsgesellschaft mbH which is seated in Stuttgart, Germany. He frequently is appointed as an arbitrator.
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 that become a party to such convention either by ratification, accession, or succession. This is also true for the New York Convention.
The Vienna Convention on the Law of Treaties of May 23, 1969 (Vienna Treaty Convention) 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 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 law 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.