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

In relation to this aspect; first, arbitral was defined. In this regard, grounds for non – arbitrability were taken up for discussion. In addition, reasons for non – arbitrability, the liability of arbitrators, related legal systems, and the limitations on the grounds for the refusal of arbitral awards in Kuwait were taken up for discussion. In this regard, various sources like academic textbooks, authentic journals, international treaties, and reports from international organizations were examined and analyzed.

Finally, conclusions were arrived at. The New York Convention plays an important role in international commercial arbitration. Arbitral awards made in a member state of this Convention are enforceable in other member states of this Convention. However, a member state can refuse to recognize and enforce an award, if it is in conflict with its public policy. Article V (2)(b) of the Convention enables member states to refuse such foreign arbitral awards. The Model Law has adopted the provisions of the Convention and addresses the nullification of arbitral awards in Article 34(2)(b)(ii).

Moreover, Article 36(1)(b)(ii) of the Model Law deals with the recognition and enforcement of a foreign arbitral award. The New York Convention empowers its member states to refuse the recognition and enforcement of a foreign arbitral that is in breach of the fundamental values of their society. There is some disagreement regarding what constitutes public policy. In addition, it has been contended that arbitral awards relate to commercial disputes and not public policy. The Western nations have engaged in several debates regarding public policy, and the New York Convention has introduced this concept without proper consensus regarding its connotation among its member states.

At this juncture, the courts have adopted a pragmatic approach to this dispute and developed a distinction between domestic and international public policy. They have clearly established that only the principles of policy that have universal acceptance should be applied. France was the first nation to implement this interpretation, and it incorporated it via Articles 1498 and 1502 (5) of its Code of Civil Procedure. Subsequently, several countries, such as Lebanon, Algeria, Portugal, Tunisia, and Italy followed suit.

The Egyptian courts have been seen to exercise a significant amount of restraint in their interpretation. This is due to the fact that the arbitration laws of Egypt require courts to impose the standards of Egyptian public policy. Nevertheless, in one particular case, the Egyptian Court of Cessation held that it was essential to take into account the standards of international relations.