Violation of public policy as a ground for refusal in recognition and enforcement of foreign arbitral awards under the New York Convention 1958

Table of contents:
I.Introduction: Public policy concept under article V of the New York Convention (main notion and boundaries, importance of the role of the concept which it plays in international arbitration)
a. Main body: Substantive pubic policy
What is the practical meaning of the differences in understanding substantive public policy?
1.Expanded approach (Violation of principle of law, fundamental interests of society, safety of the country, sovereignty and good social customs) China, India, Indonesia
Cases: The Heavy Metal case
Renusagar Power Co. Ltd. v General Electric Co
COSID Inc. v Steel Authority of India
Kahara Bodas v Perusahaan Pertambangan Minyak dan Gas Bumi Negara +ect.
2.Limited approach Most basic notions of morality and justice – ( The USA, Singapore, The UK)
Cases : Parsons Whittemore Overseas Co. Inc. v Societe Generale de LIndustrie du Papier
Westcare Investments Inc. v Jugoimport Law

Lemenda Trading Co. v. African Co. Limited

Soleimany v Soleimany

Eco Swiss China Time Ltd. v. Benetton International BV +ect.

b.Procedurial public policy
Is there such a notion or it represents a set of distinctive grounds for refusal of enforcement under article V(1) NYC ?
1. Deprivation of the opportunity to be heard
2. Abuse of the procedure
3. Lack of Impartiality of the arbitrators
4. Award obtained by fraud or based on falsified documents

II.Types of public policy in international arbitration (domestic, international, transnational, regional and truly international) and its interaction in modern arbitration.
What is the main criterion for separation between these types and its meaning for international arbitration?
How does that influence on the current practice?
a.The French approach ordre public international (Using international public policy)
Pros and cons of that method – greater consistency for international arbitration, but it raises confusion over what source enforcement State are to look to in determining the public policy defence- national source or international one?
b. The world-widespread approach Using national public policy (more than 46 countries)
c.Supranational public policy approach (The USA, India)
What is understood by that and how it influences on globalization of international arbitration?
Parsons Whittemore Overseas Co. Inc. v Societe Generale de LIndustrie du Papier
Mitsubishi Motors Corp. v Soler Chlysler-Plymouth Inc.
National Oil Corp. v Libyan Sun Oil Co.
Belship Navigation Inc. v Sealift Inc.+ ect.
III.Judicial discretion in considering grounds for rejection of enforcement of foreign arbitral awards.
How free is a judge can be considering such grounds? Are there any limits?
Does the article V of NYC have a discretionary nature?
a.Mandatory line of approach Judges are obliged to reject the enforcement in a case of proved ground of non-enforcement (China )
Cases : Revpower Ltd v Shaghai Far East Aerial Technology Import and Export Corporation
The Notice of the Supreme Peoples Court of China on 10.04.1987 On the performance of the Convention on Recognition and Enforcement of Foreign Arbitral Awards + ect.
b.Discretionary approach – Judges have right to allow enforcement even with established non-enforcement grounds (The UK, Hong Kong, Russia)
Cases: Dardana Ltd.v Yukos Oil Company
The Dallah case
Minmetals Germany GmbH v Ferco Steel Ltd.
Paklito Investment Ltd. v Klockner East Asia
Shenzhen Nan Da Industrial and Trade United Co Ltd v FM International Ltd
China Agribusiness Development Corp. v Balli Trading
Pacific China Holdings Ltd. v Grand Pacific Holdings Ltd
MGM Production Group Inc. v Aeroflot Russian Airlines+ ect.
c.Enforcement of the annulled award
Is it possible to enforce the award which was set aside by the courts of the seat of arbitration?
1. General notion If an award has been set aside by the courts of the seat of arbitration, the courts of other countries should refuse to enforce the award under the Convention. ( The UK attitude)
The Dallah case+ etc.
2. The opposite approach ( France, The USA)
Cases : TermoRio SA ESP v Electrificadora del Atlantico SA ESP
Corporation Mexicana de Mantenimiento Integral v Pemex-Exporacion y Production
Yukos Capital SARL v OAO Rosneft
Malicorp Ltd. V Government of the Arab Republic of Egypt + ect.
How does this affect the consistency between enforcing courts?
Whether that adds predictability and confidence in international arbitration?
What are the tendencies for the future?
Conclusion
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