On The Interpretation And Application Of The Public Policy Rules Of The "New York Convention" In My Country

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards was made in New York on 10 June 1958 and is therefore commonly referred to as the“New York Convention”.Its principal aim is that foreign and non-domestic arbitral awards will not be discriminated against and it obliges Contracting States to ensure such awards are recognized and generally capable of enforcement in their jurisdiction in the same way as domestic awards.Article V of the New York Convention stipulates the grounds for the competent authorities(usually the courts)in the relevant country to refuse the recognition and enforcement of arbitral awards on their own ex officio or upon the parties’ application.One of which is Article V(2)(b)– an arbitral award’s recognition and enforcement may be refused if ‘[t]he recognition or enforcement of the award would be contrary to the public policy of that country’.As public policy is an uncertain legal concept,its interpretation and application in each jurisdiction have always been the scholars’ focus of attention.Premised on respecting national sovereignty and enabling national courts to have ultimate control over the outcomes of arbitration,Article V(2)(b)of the New York Convention expressly stipulates that public policy is the public policy of the enforcement State(‘the country where recognition and enforcement is sought’).Public policy is not a legal term inherent in the PRC’s ‘civil’ law framework.The PRC legislators and courts only began to use the term public policy as specified in Article V(2)(b)of the New York Convention after the PRC acceded to the New York Convention in 1987.How have the PRC courts interpreted and applied public policy as specified in Article V(2)(b)of the New York Convention following the PRC’saccession to the New York Convention? Are such interpretation and application converging with international consensus,or are they specially flavored with ‘Chinese characteristics’ ?Public policy serves as a ‘safety valve’ as it is an uncertain legal concept.However,there is a broadly accepted international consensus on this concept’s core meaning.In order to facilitate international enforcement of arbitral awards,the International Law Association(ILA)have also presented the research and lunched the Final Report on Public Policy as a Bar to Enforcement of International Arbitral Award in 2002.This thesis,in the first chapter,analyses the meaning of Public Policy from many perspectives,such as etymology,the objectives and functions of New York Convention,and the historical development of public policy provisions in the international conventions.And then discussed about the Final Report’s suggestion made by ILA,in this Final Report,the term ‘public policy’ can be understood from three categories with varying scope: ‘domestic public policy’,‘international public policy’ and ‘transnational or truly international public policy’.At the end of the first chapter,the author also gave some examples of national legislation concerning public policy for readers’ reference.Then in the following Chapters,this thesis talked about how to properly understand the reviewing principles and the scopes regarding to public policy in the domestic courts,when encountering the recognition and enforcement of foreign arbitration awards.In terms of the reviewing principles,the author believes that the domestic courts shall review the public policy issue as an exception,and shall make effort to unify the review standards.In terms of the reviewing scope of public policy issues,we should understand the public policy in the field of private international law,so the public policy under the New York Convention is the public policy of the country where the enforcement application is sought,but such policy shall carry the character of international.The author of this thesis analyzed the Chinese relevant legislation both before the accession to the Convention and after the accession to the convention.Especiallyanalyzed the problems in Chinese legislation regarding to the foreign arbitration awards’ recognition and enforcement.The above part follows the analysis of Chinese courts’ practice of recognition and enforcement of foreign arbitration awards.In the last chapter,the author put forward two important questions of Chinese courts’ practice.The first question is known as the local protectionism,in order to restraint this practice,the SPC of China established the reporting system.This reporting system has been playing an important role in courts’ practice.The author advocating that the SPC shall set up a systematized legal interpretation regarding the public policy,so that not only lower courts but also the public could have a better way to understand the public policy review in china.The second question is that the court shall make the legal explanation more detailed,so that the lower courts could be better understood and instructed in their case hearing by the higher courts.Only in this way can we promote the authority and predictability of public policy in China.