Kastom: A Public Policy Exception Under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Indian Journal of Arbitration Law, Vol 7 (1), page 104

21 Pages Posted: 13 Nov 2018

See all articles by Petra Butler

Petra Butler

Victoria University of Wellington, Te Herenga Waka - Faculty of Law; University of Navarra - School of Law ; Institute of Small and Micro States

Christoph Katerndahl

Independent

Date Written: July 16, 2018

Abstract

Despite the enormous success of the New York Convention, the Pacific Island countries [“PICs”] are a blank spot on the New York Convention map. Any effort to promote international arbitration law reform in the PICs has to be sensitive to their exciting legal frameworks to be successful. The PICs are plural legal systems in which ‘kastom’ provides a set of norms often equal to positive laws. An obstacle on the PICs’ way to become part of the international arbitration community are fears that their ‘custom’ or ‘kastom’ may be left aside or overridden by the overseas legal principles and paradigms. The paper discusses if and to what extent the PICs’ ‘kastom’ may qualify as ‘public policy’ under Article V(2)(b) of the New York Convention, thereby allowing Pacific Island states to deny the recognition and enforcement of foreign arbitral awards which they deem fundamentally contrary to their ‘kastom’.

Keywords: Custom, New York Convention, International Arbitration

JEL Classification: K19, K33

Suggested Citation

Butler, Petra and Katerndahl, Christoph, Kastom: A Public Policy Exception Under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (July 16, 2018). Indian Journal of Arbitration Law, Vol 7 (1), page 104, Available at SSRN: https://ssrn.com/abstract=3270313 or http://dx.doi.org/10.2139/ssrn.3270313

Petra Butler (Contact Author)

Victoria University of Wellington, Te Herenga Waka - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

University of Navarra - School of Law ( email )

Campus Universitario
Amigos Building
Pamplona, Navarra 31080
Spain

Institute of Small and Micro States ( email )

United Kingdom

HOME PAGE: http://https://www.ismsworld.com/

Christoph Katerndahl

Independent

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