Aligning State Sovereignty with Transnational Public Policy

(2018) 93(2) Tulane Law Review 207

UNSW Law Research Paper No. 18-89

62 Pages Posted: 14 Dec 2018 Last revised: 24 Jan 2019

See all articles by Leon Trakman

Leon Trakman

University of New South Wales (UNSW) - Faculty of Law

Date Written: December 1, 2018

Abstract

The rationale for “delocalizing” transnational public policy is not that domestic authorities lack the capacity to delineate the scope of transnational public policy. Rather it is that the public policy that is articulated solely through a domestic judicial lens can be fractionalized as national courts internalize public policy differently to comport with their discrete and sometimes conflicting domestic requirements. This Article uses controversial litigation in the United States and Russia to illustrate the disturbing ripple effect of domestic courts declining to enforce foreign judgments that have annulled arbitration awards. It proposes a way for domestic judges to apply transnational public policy to international commercial transactions, without displacing or circumventing domestic public policy. It applies this analysis to the “public policy exception” by which domestic judges decline to recognize and enforce international arbitration awards under the New York Convention.

Keywords: transnational public policy, arbitration awards, United States, Russia, domestic judges, domestic public policy

Suggested Citation

Trakman, Leon, Aligning State Sovereignty with Transnational Public Policy (December 1, 2018). (2018) 93(2) Tulane Law Review 207, UNSW Law Research Paper No. 18-89, Available at SSRN: https://ssrn.com/abstract=3301024 or http://dx.doi.org/10.2139/ssrn.3301024

Leon Trakman (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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