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THE SCOPE OF REVIEW IN ANNULMENT PROCEEDINGS - Stockholm International Arbitration Review (SIAR) 2008 No. 2

Author(s): 
Piero Bernardini
Page Count: 
14 pages
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Published: 
February, 2009

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Originally from: Stockholm International Arbitration Review

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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”.1
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 Convention2. Discussions and
commentaries have centered, among other questions, on the distinction
between domestic and international public policy, on the place to be
assigned to the so-called “transnational” or “truly-international” public
policy, on the interference with the lois de police (or lois d’application
immédiate) and whether issues of procedure in addition to substantive