PUBLIC POLICY AS GROUNDS FOR ANNULMENT OF OR NON-RECOGNITION OR ENFORCEMENT OF ARBITRAL AWARDS IN EAST ASIA
Michael Hwang S.C. and Shaun Lee
Winning the arbitration is merely the first stage in the enforcement of the claimant’s rights. The next is actually enforcing that particular award. Conversely, for a losing party, an unfavourable award is not necessarily the end of the line. An award can still be annulled or set aside by the court with primary curial jurisdiction and even a court with secondary enforcing jurisdiction can decide whether to enforce an arbitral award. Annulment, recognition, and enforcement of arbitral awards are subject to the provisions of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (“New York Convention” or “NYC”) and the forum’s arbitration legislation. In turn, national arbitration legislation is increasingly based on the UNCITRAL Model Law on International Commercial Arbitration (“Model Law” or “ML”). Of all the grounds available to the court to vacate or to refuse to recognize or enforce an arbitral award, no other ground is as problematic as that of public policy, which remains undefined in both the New York Convention and the Model Law and provides a basis for courts to manifest judicial hostility or simple parochialism against arbitration. Such an approach would undermine the raison d’être behind the New York Convention and the Model Law in promoting arbitration as an alternative to litigation. Public policy could then threaten to transform arbitration into nothing more than a simple prelude to extensive litigation.
This paper’s working thesis is that accession by a State to the New York Convention and the decision to base its laws on the Model Law manifest of a pro-arbitration policy. Accordingly, we ought to see minimal curial intervention or intervention that is directed towards aiding the arbitral process. One manner in which this would be reflected is a limited or restricted interpretation of the concept of public policy.