Refusing the Recognition and Enforcement on the Ground of Public Policy and Non-arbitrarily - Thesis Example

The International Convention on the Recognition and Enforcement of Foreign Arbitral Awards that took place in New York on June 10, 1958, allows the refusal to recognize and reinforce foreign arbitral awards because the recognition of the award is contrary to the public policy of the country; Kuwait in this case. Therefore, the Kuwait courts can annul the arbitral awards that have already been rendered at the request of the parties if the award doesn’t obey the rule of law in Kuwait.

The annulment might also take place if the subject matter of the conflict ad dispute is non-arbitral in the sense that it contradicts Kuwait’s public policy. The reason for refusal to recognize and enforce arbitral awards or annulment of already rendered awards makes the award invalid and it cannot be enforced in any other jurisdiction against the party that loses.
5.1Recognition and Enforcement of Public policy in Kuwait
5.1.1Introduction
Kuwait is a party to the New York international convention and therefore its recognition and enforcement of foreign arbitral awards are entirely subject to the convention.

However, Kuwait is also a part of various bilateral agreements and many international conventions concerning this subject. Therefore, Kuwait courts are not allowed to review, re-appeal, and re-review the qualities and the qualification of a certain case and the reasons for refusal of recognition and enforcement are listed in the IPPL. All arbitration scholars and practitioners understand that the violation of order public (public policy) of the enforcing state has always been a reason for refusing the recognition and enforcement of foreign arbitral awards and judgments.

This provision is enshrined in Article V.2 of the Convention in New York. The exception of the public policy on the enforcement is acknowledging the rights of the State and its courts apply the eventual control over the arbitration process taking place in that particular state. However, tension usually arises when determining the conflicts which are to be resolved by the legislature and the courts: on one hand, having the desire to respect the conclusiveness of the awards and on the other hand, lend the authority of the state to enforce the wards which are contrary to the domestic values and laws.

Public policy is usually considered a vague concept that is almost impossible to define. It varies from country to country and from State to State. This usually leads to unpredictability and uncertainty which brings difficulties in the enforcement of arbitral awards in different countries on reasons of public policy. A six-year study done by the International Commercial Arbitration Committee of the International Law Association revealed the effects of public policy on the enforcement of arbitral awards in several countries.

The Committee found that public policy is hardly ever successful in regulating the enforcement of foreign awards. Nonetheless, the Committee proposed a greater harmonization of the approach which will result in greater consistencies and certainties which will reduce the many challenges to the awards. The International Law association made several recommendations which were implemented in April 2002 at the ILA’s 70th conference in New Delhi.