Recognition And Enforcement Of Arbitral Awards On Public Policy

In recent years, international commercial arbitration has gained increasing popularity for its convenience, confidentiality and high efficiency. Yet, the recognition and enforcement of foreign arbitration awards in a foreign nation directly affects the effectiveness of such dispute resolution, and further affects the realization of the parties' rights and obligations. Public policy, as a basic mechanism in the international private law, has been widely applied in the ruling out of the application of foreign laws, while in the international commercial arbitration field, most national courts take the public policy as the bottom line in the recognition and enforcement of the foreign arbitral awards. The judicial practices and theoretical research in this field have reflected the development tendency of the public policy. The 1958 New York Convention is one of the most typical ones. China, as a Contracting Party to this Convention, has its doubts over the applicable standard of public policy in the recognition and enforcement of the international commercial arbitral awards and has different judicial practices in this field. In a word, the scholars, courts, arbitral organs and parties still have misunderstandings to a certain extent regarding the public policy in the recognition and enforcement of the international commercial arbitral awards. Thus, this paper shall analyze it in five chapters.Chapter 1 begins with an introduction to the public policy in the international private law and in the international commercial arbitration fields. The author introduces the history and the present of public policy; analyzes the concept, characteristics and basic theories of public policy in the international private law; and discusses the position and role of public police in the recognition and enforcement of foreign arbitral awards.Chapter 2 continues to a detailed analysis of the contents, recognition and significance of public policy through the stipulations in the New York Convention and other relevant international conventions, international organs and national legislations. The author also analyzes the connection of public policy and non-capability of settlement by arbitration, proper arbitration proceedings and "manifest disregard of the law".Chapter 3 details in the legislations and judicial practices of various New York Convention Contracting Parties with exemplary examples. The author explores the development tendency in the judicial practices and the narrow interpretation of public policy for the foreign arbitral awards, and points out the supporting attitudes of most nations towards the arbitration.Chapter 4 goes to the legal sources and judicial practices in China, particular analyzing the problems of China's judicial practices in the recognition and enforcement of the international commercial arbitral awards. The author continues to introduce the enforcement of arbitral awards between Mainland China, Hong Kong, Macau and Taiwan.Chapter 5 has concluded the practices in the recognition and enforcement of the international commercial arbitral awards, and given a priority to the expectations over China's legislation and judicial practice in the future.