Public Policy Exception and Arbitrability Defence under the New York Convention 1958 : A study of public policy and arbitrability, including empirical evidence of national court decisions

Abstract: This thesis investigates the public policy exception and arbitrability defence under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention 1958”) in international commercial arbitration. It examines the varied notions of public policy, including domestic/national, international, and transnational public policy, and scrutinises the nuances of the arbitrability concept, noting a distinct approach in the U.S. The study also investigates the relationship between public policy and arbitrability.  The New York Convention 1958 advocates a pro–enforcement policy, urging its Member States to interpret and apply the limited grounds for refusing recognition and enforcement of arbitral awards restrictively. Over time, this pro–enforcement approach has evolved into a consensus, yet there is a lack of empirical evidence substantiating this widely held view. The study seeks evidence-based law insights on the consensus.The research comprises three steps: first, examining the general notions of public policy and arbitrability. Second, analysis of specific provisions of the New York Convention 1958 related to public policy and arbitrability, along with the UNCITRAL Model Law’s role in attempting to shape Member States’ arbitration legislations. It highlights the very great diversity of interpretation and applications by different Member States due to their varied legal, cultural, and economic backgrounds. Last, investigation of the enforcement friendly stance, through a quantitative study of national court decisions. It analyses the frequency and success rates of the public policy and arbitrability defences. The findings suggest, contrary to the conclusion one would reach from a study limited to the diversity of interpretation and application noted above, that there is in fact a strong pro–enforcement approach, with only 11% of cases successfully invoking the public policy or inarbitrability defences in challenged proceedings.This study brings to the surface the unexpectedly strong influence of the New York Convention 1958 and the Model Law in achieving consensus despite the diversity highlighted. It contributes to the understanding of public policy and arbitrability as concepts as well as defences, underscoring their application in different legal contexts and providing empirical evidence on the pro–enforcement spirit. The study’s insights offer suggestions for future research and legislative development in this field.