Originally from Defeating and Defending Awards: Arbitrability, Public Policy, and Global Court Practice

PREVIEW

1.1  The Research Background and Aim

This thesis is centred on the understanding and analysis of the public policy exception and arbitrability defence under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention 1958”) in international commercial arbitration. The Research Aim is to explore the public policy exception and arbitrability defence in international commercial arbitration under the New York Convention 1958. The objective is to examine how public policy and arbitrability are understood and implemented by the Member States of the New York Convention 1958, specifically in relation to Article V(2)(b) and Article V(2)(a), which are two of the seven exhaustive and limited possible defences.

Public policy embraces a large body of ideas and notions in legal jurisprudence. During the thesis conception stage when the focus was solely on public policy, it became apparent that the issue of arbitrability also needed to be embraced. Arbitrability is, in essence, a question of whether a subject matter is capable of settlement by arbitration. There is a strong view in the literature that arbitrability is a part of public policy, that is to say, that public policy overarches arbitrability or that it is a limitation on public policy. However, after some investigation, it became clear that this general conception is not quite accurate, or at least not all the time. There is an equally robust opposing view amongst commentators that arbitrability is not a subset of public policy. However, the precise nature of their relationship and the rationale behind it remain indistinct and elusive, lacking a clear or concrete explanation. The research path then led to another enquiry: what is the link or correlation between public policy and arbitrability? How do public policy and arbitrability relate, or do they relate at all? The commonly held view is that arbitrability is a part of public policy, or that it comes under the umbrella of public policy, but is that so, and if it is, how? In certain circumstances, arbitrability is overshadowed by public policy and it fits neatly as  a part of it. At other times, arbitrability stands alone and totally independent of public policy. This necessitated exploring the nuanced relationship between public policy and arbitrability.

However, first a whole host of other enquiries into the concept of arbitrability need to be addressed, including: what does the arbitrability notion include? What is arbitrability or inarbitrability? In essence, arbitrability determines the question of whether something may be subjected to arbitration or not, and if not, then the subject matter is reserved for the jurisdiction of the courts. Ostensibly, the notion is simple, however, its content is complex and difficult to ascertain for many reasons, not the least of which is that it encompasses other prevalence rights and obligations, including private rights, party autonomy, and jurisdictional issues.

In the field of legal studies, particularly in the context of international commercial arbitration, the literature on the subjects of public policy and arbitrability is extensive. However, this body of work has often been fragmented or is jurisdictions-specific rather than providing a comprehensive examination. This study aims to fill that gap by offering a more holistic and general understanding of public policy and arbitrability as legal doctrines, with a particular emphasis on their application under the provisions of the New York Convention 1958.