AN INTRODUCTION TO INTERNATIONAL PUBLIC POLICY - Stockholm International Arbitration Review (SIAR) 2008 No. 2
Lord Goldsmith Q.C.
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Originally from: Stockholm International Arbitration Review
AN INTRODUCTION TO INTERNATIONAL PUBLIC POLICY
Lord Goldsmith QC
In 1824, Mr. Mellish was sued by Captain Richardson for having reneged on a promise to reinstate him as master of the ship “Minerva”. His agreement was based on a complicated arrangement with Mr. Mellish who wanted to advance his nephew, Captain Mills, by giving him the command which previously Captain Richardson had held. As in all rigorously contested litigation, Mr. Mellish raised a number of defences − i.e., that the contract wasn’t binding, that the evidence was wrongly admitted, that damages had been wrongly assessed, and, finally, that the contract was against public policy. Selling the command of important vessels was against the public policy of the day, apparently. The court, presided over by the Chief Justice of the day, rejected even that defence. In his judgment, Burrough J used the phrase which resonates now with every English lawyer confronted with a public policy argument:
I … protest against arguing too strongly upon public policy – it is a very unruly horse and once you get astride it, you never know where it will carry you … .” And he went on: “It may lead you from a sound law. It is never argued at all but whenever other points fail."
This seems to me as good a starting point as any for the consideration of public policy in the world of arbitration: it illustrates that whilst a resort to public policy may prevent the enforcement of an obligation that would otherwise lie, there are dangers in a court too readily allowing such an approach and that this is often the last resort defence of the unwilling debtor. And despite that sonorous demolition of public policy as a defence, it remains an important part of English law, as of many other systems of law. Therefore, in English law, public policy may be a legitimate defence to a claim based in contract. It is also unashamedly a touchstone by which the British laws of Tort and Delict determine when there is a duty of care and when there is not. Thus, in the critical area of liability for negligence, whether the imposition of a duty would be contrary to public policy has formed an essential part of successively a two stage and three stage test.