Introduction - Chapter 1 - 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.
As healers of human conflicts, the obligation of the legal profession is to provide mechanisms that can produce an acceptable result in the shortest possible time, with the shortest possible expense, and the minimum of stress on the participants. That is what justice is all about.1
Globalization describes an economy where especially public and private companies regularly do cross-border transactions. Business dealings with foreign companies are commonplace for many years. In an imperfect world, disputes regarding the performance of contractual or legal obligations will occur inevitably;2 this is true not only for national transactions, but also for cross-border transactions. National trade, but especially international trade thrives on the rule of law.3 Perhaps it is more appropriate to say that international trade thrives on the enforcement of the rule of law if the parties cannot resolve their disputes amicably; without such enforcement parties will be reluctant to enter into cross-border transactions or to make investments abroad. This would have negative consequences for the prosperity of international trade.
Parties involved in cross-border transactions, therefore, have an interest in resolving disputes in a way that a decision can be enforced and damage be controlled or mitigated. If the parties involved cannot resolve such disputes amicably, then such disputes need to be resolved ideally in a fast, efficient, and effective proceeding. Parties can ask one of their national courts to decide their disputes arising out of international transactions. This, however, presents a national solution for an international conflict between parties who belong to different states. At least, such a judgment can be enforced in the state under whose procedural law it was rendered. But often a defendant does not have sufficient assets in the jurisdiction to satisfy the judgment in the jurisdiction in which it was rendered. Therefore, the plaintiff will have to enforce the judgment abroad; but often foreign judgments will not be recognized and enforced abroad.4