THE SCOPE OF REVIEW IN ANNULMENT PROCEEDINGS - Stockholm International Arbitration Review (SIAR) 2008 No. 2
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Originally from: Stockholm International Arbitration Review
THE SCOPE OF REVIEW IN ANNULMENT PROCEEDINGS
Prof. Piero Bernardini
1. It is a common observation that international arbitration has become world-wide the most widespread method of dispute resolution, mostly due to the liberalisation that has marked its development during the last thirty years. This trend has been favoured by the attitude of State courts, more and more receptive to the idea that the autonomy of international arbitration is not merely to be tolerated but rather to be encouraged by eliminating obstacles to its full development. Obstacles such as the written form of the arbitration agreement, arbitrability of disputes in the international context, State courts’ interference, State’s immunity from jurisdiction (sometimes even from enforcement), and still others have been largely removed, thus enhancing the autonomy of the system.
2. In a context marked by the utmost liberalisation and full development of this method of dispute settlement, public policy has been held to constitute “le seul ilôt de résistance à l’autonomie de l’arbitrage international”. Reference might rather be made to public policy as the ultimate means of control by a State regarding an award which aspires to be given effect in its territory but which might conflict with its fundamental principles and values. Thanks to public policy, therefore, international arbitration undergoes a measure of control by States regarding the arbitrator’s product, the award. This control is also in the interest of the business community which is presumed to share the same principles and values protected by States’ public policy.
3. The last months have seen a revival of doctrinal interest in public policy in international commercial arbitration on occasion of the celebration of the 50th anniversary of the New York Convention.