Standards of Procedural International Public Policy - Chapter 2 - International Arbitration and Public Policy

Author(s): 

Richard Kreindler

Page Count: 

14 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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The concept of public policy refers to the "fundamental notions of a
particular legal system."1 Where an international arbitral award is at

issue, courts in most major jurisdictions apply a more restrictive concept

of "international public policy" as opposed to the broader concept of

domestic public policy.2 Pursuant to the concept of international public

policy, only matters which are essential to the forum state's legal system

and which are regarded as being mandatory even in international or

transnational settings may constitute relevant public policy grounds.3

 

The concept of transnational public policy refers to the generally

internationally accepted core principles, which thus are part of the public

policy of the majority of states.4 Finally, one can differentiate between

substantive and procedural public policy. Legal violations of the parties

usually can result only in a substantive public policy defense but not in a

procedural public policy defense.5 However, a precise definition of

public policy is "notoriously difficult,"6 and the concept - both in its

substantive and in its procedural dimension - is also not applied in a

uniform fashion. In fact, when applied in an "international" or

"transnational" manner, ascertaining or demonstrating standards of

"procedural public policy" is, in its own way, just as problematic, if not

more so, than respecting standards of "substantive public policy."

 

In both cases, a distinction may exist between the national

"international public policy" of the seat of arbitration and the putative

"transnational public policy." What is meant here is a universally or largely

universally accepted public policy norm. It is independent of specific

national rules, including those at the seat. Of course, the two may well

substantially overlap, both on a substantive and a procedural plane.