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

The definition of public policy refers to principles that guide the operation of legal systems in a particular government. Normally it addresses the issues of social, moral, and economic values that bind a community together. Public policy can also be defined as the general guide to action taken by the management committee of any government1 about the law and institutional customs of a particular government.

It can also be defined as a system of "courses of action, regulatory measures, laws, and funding priorities concerning a given topic promulgated by a governmental entity or its representatives2. The United States of America defines public policy not only as the result of policies but more broadly as the decision-making and analysis of governmental decisions3. Public policy can be generally defined as a system of laws, regulatory measures, courses of action, and funding priorities concerning a given topic promulgated by a governmental entity or its representatives 3.

Therefore public policy according to the researcher refers to the guiding principle of a given government and public policy is law, normally the law includes specific legislation and more broadly defined provisions of constitutional or international law. public policy consists of principles and regulations that pertain to justice or morality or serves the fundamental socio-political and economic interests of that government4. The researcher notes public policy cannot be defined with precision because each government has its notion of what constitutes public policy.

Though similar conceptions of public policy are shared by most developed arbitral jurisdictions. Public policy can a weapon in international commercial arbitration ‘helpful in that it helps in settling disputes. Judicial perceptions of public policy have changed from time to time. According to the rather pessimistic English view in the 1820s a very unruly horse, and when once you get astride it you never know where it will carry you5. From various literature reviews, the researcher finds that enforcement by proceedings in a national court is ‘the ultimate sanction’ against the recalcitrant party for non-compliance with an award.

Public policy is a process whereby a private act is empowered by a public act. In this context, public policy has been referred to as the most significant and confusing bases for refusing the enforcement of arbitral awards. 6 Public policy has several attributes that are; relative. There are two ways. The first is when it is confined to the public policy of the state of enforcement. In this sense, public policy is geographically relative. The second is when it is restricted to the applicable public policy at the time of enforcement proceedings.

In this sense, public policy is chronologically relative. An enforcement state’s public policy is extra-territorial when it is restricted to dealings that involve foreign elements. The prominent feature is that there must be an adequate link between the enforcement state and the arbitral award to apply the enforcement state’s public policy to the award. Lastly, Public policy possesses the attribute of fundamentality when it is restricted to the fundamental public policies of the enforcement state7.

These are those basic principles of Justice or morality that an enforcement court feels bound to apply not only to domestic matters but also to matters with a foreign element. 910 According to the researcher public policy is grouped by reference to the substance-procedure distinction. This group concerns the contents of an arbitral award whereas ‘procedural public policy’ concerns the procedure under which an arbitral award is rendered.