In October 2015, the International Bar Association (IBA) Subcommittee on Recognition and Enforcement of Arbitral Awards (IBA Subcommittee) published a “Report on the Public Policy Exception in the New York Convention” (Report). The Report summarizes the findings of country reports prepared by the different Members and Reporters of the IBA Subcommittee on the public policy exception under Article V(2)(b) of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention).
The Report notes that the notion of public policy, the contravention of which is one of the few grounds for refusing the recognition or enforcement of a foreign award, “was (intentionally) not defined in the Convention and its concrete manifestations may substantially vary from one jurisdiction to another”. Accordingly, with this Report, the IBA Subcommittee attempted “to define public policy as a ground for refusal of enforcement of awards under the Convention” and to draw up “a catalogue of its concrete manifestations, based upon the decisions issued by enforcing courts having denied enforcement for violation of public policy”.
Section I of the Report sets out the scope of the research that was conducted by the Subcommittee. Section II outlines a preliminary catalogue of general definitions of the notion and Section III gives a first overview of particular manifestations of public policy. The Report currently covers more than 40 jurisdictions:
- The Netherlands
The Report concludes that “the review of the public policy concept in the more than 40 jurisdictions covered so far in the study conducted by the Subcommittee confirms that it is difficult to clearly apprehend and impossible to precisely define” but that “public policy as a ground for refusing the recognition or enforcement of foreign awards under Article V(2)(b) of the Convention is overwhelmingly considered to include only a very limited number of fundamental rules or values”.
The work of the IBA Subcommittee is still ongoing and the Report itself invites lawyers from jurisdictions not already covered to volunteer for preparing a memorandum addressing the public policy exception of the New York Convention under their jurisdiction’s law.
Source: International Bar Association at http://www.ibanet.org/LPD/Dispute_Resolution_Section/Arbitration/Default.aspx