CEU Electronic Theses and Dissertations, 2019
| Author | Dar, Wasiq Abass |
|---|---|
| Title | THE PUBLIC POLICY ENIGMA IN INTERNATIONAL COMMERCIAL ARBITRATION (With Special Reference to Public Policy as a Ground to Refuse Enforcement of Foreign Arbitral Awards in India, and its Comparison with England, Singapore, and the United States) |
| Summary | The notion of public policy owing to its fluid nature coupled with the significance of its application in the realm of cross-border dispute resolution mechanisms has for long been an issue of interest as well as concern. The mysterious nature of the doctrine of public policy and its role in international commercial arbitration itself carves out a case for an in depth examination, contributing to both theory and practice. The elements of uncertainty, unpredictability and subjectivity attributed to public policy have, at times, significantly impeded the functionality of international commercial arbitration, in general, and undermined the foundations of the New York Convention, in particular. Public policy doctrine can play a noteworthy role throughout the process of arbitration; right from the conclusion of arbitration agreement followed by arbitral proceedings to the setting aside and enforcement stage, it is almost omnipresent. And at every stage it can influence the process in a manner that can have a significant impact on the celebrated features of international commercial arbitration, i.e. party autonomy and finality of arbitral awards. The thesis provides a comprehensive understanding of the complex role that public policy plays in international commercial arbitration at various stages. For that it begins by delving into the genesis of the concept of public policy and its evolution in the field of private international law. Building on that, the thesis explores the manner in which national courts use public policy as a tool at different stages of arbitration to intervene for various reasons. The major portion of the thesis examines the role of public policy as an exception to enforcement of foreign arbitral awards. It examines the understanding of public policy exception as envisaged by the New York Convention, and how national courts from across the jurisdictions have responded to it. The focus remains on the diverging approaches followed by the national courts, where on the one hand pro-enforcement policy has been favored and on the other hand courts have preferred an interventionist approach. For the purpose of comparison, the erratic position of the national courts of India on interpretation and application of public policy exception is probed and compared with the approach adopted by the more arbitration friendly courts of England, Singapore, and the United States. The thesis aims at contributing to the scholarship by identifying the key issues in concern and suggesting a pragmatic approach to deal with them. Keeping in mind the significance of harmonization, if not uniformity, in context of interpretation and application of public policy exception, it lays a road map for jurisdictions like India that are criticized for being too intrusive, with a hope of guiding them to adopt a more arbitration friendly approach. |
| Supervisor | Tibor Várady |
| Department | Legal Studies PhD |
| Full text | https://www.etd.ceu.edu/2019/dar_wasiq.pdf |
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