'How Do or Should Arbitrators Deal with Domestic Public Policy or Regulatory Issues. Does it Affect Arbitrability?'
37 Pages Posted: 18 Jul 2009
Date Written: September 1, 2008
In Arbitration, especially in the International scenario, public policy has always been treated as a doubled-edged sword. There has constantly been conflicting views in determining the nature, scope and definition but, until date nothing concrete has come up which can be universally accepted. It has been considered as a ‘helpful tool, dangerous as a weapon’. These views have given birth to the much-debated division of ‘public policy’ as domestic and international. Nevertheless, with the further classification came the confusion as to its application, terminology and scope of both. Where some nations interpreted it broadly, some at the same time exploited it rendering the whole arbitral process futile. As per my understanding, ‘broad interpretation’ of the term has literally taken arbitration out of the hands of the arbitrators bestowing the same to the national courts and the judges, demeaning the whole logic of alternative dispute resolution. The same thesis has been followed here and exemplified through the whole discussion in this research paper and possible conflicts and solutions have been sought for, where relevant. For a more specific consideration, the nations have been categorised as civil law and common law jurisdictions taking up the legislation and case laws from France, India, Switzerland, United Kingdom and United States of America. Efforts have been made towards critically evaluating the position of ‘public policy exception’ in these nations and the final recommendation of reforming the concept of ‘public policy’ in a more universal dimension for global acceptance and application has been portrayed.
Keywords: public policy, domestic, international, arbitrability, commercial arbitration
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