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.

 

 

Generally, to make out a standard of “transnational substantive public policy,” the modern trend favors relying upon a consensus as to its content. The presence of a consensus is, in turn, demonstrated especially by the body of international convention law, and also by whether there is a convergence between and among various elements. These include national laws, national case law, arbitral case law, public international law, the general principles of law, and customs and usages.

 

On that basis, transnational substantive public policy has indeed found a place in international arbitration. It is referred to and relied upon as such, whether by arbitrators or by judges. For example, the consensus that corruption and bribery offend transnational substantive public policy. Is it the same for transnational procedural public policy? In many respects, yes: reference, for example, to such sources as the UNCITRAL Model Law, the New York Convention, the ILA Report on Public Policy as Bar to Enforcement of International Arbitral Awards, national arbitration laws, and national case law as well as arbitral awards give ready support to a consensus of three kinds.