The UNCITRAL Model Law after Twenty-Five Years: Global Perspectives on International Commercial Arbitration - Chapter 7 - The Public Policy Defence in the Model Law Jurisprudence: The ILA Report Revisited
Stefan Kröll is an independent Arbitrator in Cologne and an honorary Professor at Bucerius Law School. He is a visiting Reader at the School of International Arbitration at CCLS (Queen Mary, University of London) and a national correspondent for Germany to UNCITRAL for arbitration and international commercial law. He has published widely in the field of international commercial arbitration and commercial law, including inter alia the books Comparative International Commercial Arbitration (co-authored with Lew/Mistelis), and Conflict of Law in Arbitration (edited with Ferrari). Recently he has been retained by UNCITRAL as one of the three experts to prepare the Digest on the UNCITRAL Model Law on International Commercial Arbitration.
In a famous statement in Richardson v. Mellish, the concept of public policy was compared to “a very unruly horse, and when once you get astride it you never know where it will carry you. It may lead you from the sound law.”1
Nearly two hundred years later, the concept of public policy remains controversial and much debated. This is true not only in arbitration, but in litigation as well. The public policy defence is one of the few defences that has survived the formal abolishment of exequatur proceedings for court judgments within Europe.2
In practice, reliance on public policy was originally considered to be a defence of last resort.3 Today, in most jurisdictions, it is the only defence that allows a court to consider—albeit to a limited extent—the substance of the award. That, along with the vagueness of the concept and the potential that it offers to a party seeking to delay enforcement proceedings, may explain why a violation of public policy is alleged in a surprising number of cases.4 In general, however, courts have been very reluctant to find a violation of public policy.
Table of Contents:
PART III: RECURRING ISSUES-POST-AWARD
Chapter 7 The Public Policy Defence in the Model Law Jurisprudence: The ILA Report Revisited Stefan Kröll