STANDARDS OF PROCEDURAL INTERNATIONAL PUBLIC POLICY - Stockholm International Arbitration Review (SIAR) 2008 No. 2
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Originally from: Stockholm International Arbitration Review
STANDARDS OF PROCEDURAL
INTERNATIONAL PUBLIC POLICY
Dr. Richard H. Kreindler*
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:
First, that the right to a reasonable opportunity to be heard and the right to
equal treatment (respecting both the constitution of the tribunal and the later
proceedings) are fundamental procedural rights that may not be violated.