Issues of Substantive Transnational Public Policy - Chapter 3 - International Arbitration and Public Policy

Author(s): 

Stephen R. Jagusch

Page Count: 

24 pages

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1 PDF Download

Published: 

October, 2014

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Originally from International Arbitration and Public Policy

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I. INTRODUCTION

Public policy consists of the “moral, social or economic principle[s]

so sacrosanct . . . as to require [their] maintenance at all costs and

without exception”.1 Public policy limits the application of laws or

regulations when a national legal system’s fundamental principles of

public policy are threatened.

 

Public policy has played a role in national legal systems arguably

since before “law” even became “systematic”. Its provenance is ancient.

In 1853, the House of Lords described public policy as “that principle of

law which holds that no subject can lawfully do that which has a

tendency to be injurious to the public, or against public good”.2 But

despite its long history, public policy remains a difficult concept for

lawyers, accustomed to applying black letter rules, to pin down. How are

the contours of public policy defined? What threshold is necessary to

establish a principle as one of public policy? What is the relationship

between public policy and the applicable substantive law?

 

This paper addresses the role of substantive principles of

transnational public policy in the international arbitral context. It begins

by defining substantive transnational public policy and then explains

how rules of substantive transnational public policy are to be identified.

The paper then outlines the core matters of substantive public policy and

examines the debate surrounding the role that substantive transnational

public policy should play in international arbitration.