suu tầm THE IMPACT OF PUBLIC POLICY ON COMMERCIAL ARBITRATION IN VIETNAM

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MINISTRY OF EDUCATION AND
TRAINING FOREIGN TRADE UNIVERSITY
MASTER THESIS
THE IMPACT OF PUBLIC POLICY ON
COMMERCIAL ARBITRATION IN
VIETNAM
Major: International Economics
Specialisation: International Trade Policy and
Law Code: 821111
Full name: Cao Hong Tam
Supervisor: Dr. Ha Cong Anh Bao

Hanoi, 2023
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STATEMENT OF ORIGINAL AUTHORSHIP
I hereby declare that this master’s thesis was exclusively conducted on my own
and that all data indicated in the thesis is clear, accurate, and collected from reliable
sources of information.
In addition, I hereby assure that all of the supports in the process of
implementation cited in the master’s thesis have been rightfully specified as sources.
Author
Cao Hong Tam
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ACKNOWLEGEMENTS
I would like to express my sincere gratitude to Dr. Ha Cong Anh Bao, my
supervisor, for his invaluable guidance and expertise throughout this research. His
insightful feedback and constructive criticism have been instrumental in shaping the
direction and quality of this thesis.
I would also like to thank my mother, whose love, encouragement, and
unwavering belief in my abilities have been a constant source of motivation and
strength.
I am indebted to my family and friends for their continuous encouragement.
Their support has been a constant source of motivation.
I would like to express my thankfulness to the Foreign Trade University and the
Faculty of Graduate Studies for providing a conducive academic environment and
resources for my research.
Lastly, I extend my appreciation to the authors, researchers, and scholars whose
works have contributed to the field of international commercial arbitration and public
policy. Their dedication to research and their insightful contributions have served as
inspiration and a valuable resource for this thesis.
Thank you all for your contributions and support.
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TABLE OF CONTENTS
STATEMENT OF ORIGINAL AUTHORSHIP....................................................i
ACKNOWLEGEMENTS........................................................................................ii
LIST OF ABBREVIATIONS.................................................................................. v
ABSTRACT.............................................................................................................vi
SUMMARY OF THESIS RESULTS ...................................................................vii
CHAPTER 1: INTRODUCTION ........................................................................... 1
1.1. Research rationale ................................................................................ 1
1.2. Literature review................................................................................... 2
1.3. Research objectives.............................................................................. 5 1.4.
Subject matter and scope of research ................................................... 5 1.5.
Methodology ........................................................................................ 6 1.6.
Research disposition............................................................................. 7
CHAPTER 2: THEORETICAL FRAMEWORK.................................................
8 2.1. Overview of commercial arbitration .................................................... 8 2.1.1.
Definitions .................................................................................... 8 2.1.2.
Characteristics............................................................................. 10
2.1.3. Arbitral awards, types of arbitral awards, their recognition and enforcement
................................................................................................. 12 2.2. Overview of
public policy.................................................................. 15 2.2.1.
Concepts...................................................................................... 15 2.2.2. Types of
public policy ................................................................ 17 2.3. The link between
commercial arbitration and public policy.............. 18 CHAPTER 3: IMPACT OF
PUBLIC POLICY ON COMMCERCIAL ARBITRATION ON AN
INTERNATIONAL LEVEL..................................... 21
3.1. Overview of the legal framework in international conventions on the
recognition and enforcement of foreign arbitral awards................................ 21
3.1.1. History ........................................................................................ 21 3.1.2.
Public policy under the New York Convention.......................... 25 3.2. Impact
of public policy on commercial arbitration in the common law system
............................................................................................................ 27 3.2.1.
The United States........................................................................ 27
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3.2.2. The United Kingdom .................................................................. 30 3.2.3. India

............................................................................................ 33 3.3. Impact of public
policy on commercial arbitration in the civil law system
............................................................................................................ 36 3.3.1.
Germany...................................................................................... 36 3.3.2.
France.......................................................................................... 39 3.4. Evaluation of
public policy’s impact on commercial arbitration on an international level
............................................................................................ 42 CHAPTER 4:
IMPACT OF PUBLIC POLICY ON COMMERCIAL ARBITRATION IN
VIETNAM............................................................................ 45 4.1. Overview of the
legal framework of public policy on the recognition and enforcement of foreign
arbitral awards in Vietnam......................................... 45 4.1.1. History
............................................................................................... 45 4.1.2. Public policy
as a refusal ground of the recognition and enforcement of foreign arbitration
awards....................................................................... 47 4.2. Practical application of
public policy on commercial arbitration in Vietnam
......................................................................................................................... 59 4.2.1.
Statistics............................................................................................. 61 4.2.2. Notable
cases..................................................................................... 63 4.3. Evaluation of
public policy’s impact on commercial arbitration in Vietnam
......................................................................................................................... 74
CHAPTER 5: LESSONS AND RECOMMENDATIONS FOR VIETNAM ON
COMMERCIAL ARBITRATION WITH PUBLIC POLICY IMPLICATION
.................................................................................................................................. 78
5.1. Lessons from other countries.................................................................... 78 5.2.
Recommendations for Vietnam................................................................. 82
CONCLUSION ....................................................................................................... 86
LIST OF REFERENCES .......................................................................................ix
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LIST OF ABBREVIATIONS
CPC 2004 : Code No. 24/2004/QH11 dated June 15, 2004, of Civil
Procedure
CPC 2015 : Code No. 92/2015/QH13 dated November 25, 2015, of Civil
Procedure
IFC : International Finance Corporation
ILA : International Law Association

LCA 2010 : Vietnam’s Law on Commercial Arbitration 2010 MOJ :
Vietnam’s Ministry of Justice
Ordinance
1995
Ordinance
2003
Resolution No. 01/2014/NQ HDTP
: Vietnam’s Ordinance No. 42-L/CTN
dated September 14, 1995, on the
Recognition and Enforcement of foreign
arbitral awards in Vietnam
: Vietnam’s Ordinance No. 08/2003/PL-
UBTVQH dated February 25, 2003, on
Commercial Arbitration
: Vietnam’s Resolution No. 01/2014/NQ-
HDTP, dated March 20, 2014 guiding
the implementation of the Law on
Commercial Arbitration 2010
SPC : Vietnam’s Supreme People’s Court
The Database : The Database on the Recognition and Enforcement of foreign court
judgments and decisions and arbitral awards in Vietnam from
1 January 2012 to 30 September 2019
The Report : The Report on Evaluation and Comparison of Vietnamese Legal
Regulations on Accreditation and Enforcement of Arbitral
Awards with the UNCITRAL Model Law on International
Commercial Arbitration, suggesting the Applicability of the
Model Law in Vietnam 2019
UK : The United Kingdom
UN : The United Nations
UNCITRAL Model Law
: UNCITRAL Model Law on
International Commercial Arbitration
(1985), with amendments as adopted in
2006
US : The United States VLA : Vietnam Lawyers
Association
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ABSTRACT
This thesis critically examines the role of public policy on commercial arbitration
in Vietnam, with a specific focus on the recognition and enforcement of foreign
arbitral awards within the jurisdiction. By examining international practices and
Vietnamese legal texts, it sheds light on Vietnam’s approach to this important aspect
of international commercial arbitration. An analysis of noteworthy court decisions
elucidates the application of public policy in refusing enforcement. The research
findings reveal that Vietnam is aligning itself with the prevailing pro-arbitration trend
and adopting a more delimited scope for the application of public policy.

Additionally, this thesis identifies both areas of convergence and divergence in
comparison to international standards and provides tailored recommendations for
Vietnam. The findings contribute to the ongoing discourse on public policy in
arbitration and offer valuable insights for practitioners and policymakers alike.
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SUMMARY OF THESIS RESULTS
This thesis explores the impact of public policy on commercial arbitration in
Vietnam, focusing on its role in shaping the recognition and enforcement regime of
foreign arbitral awards. The research findings provide valuable insights into the
interplay of public policy in the context of enforcing foreign arbitral awards in
Vietnam.
The study commences with an in-depth overview of commercial arbitration,
providing a foundation for understanding the context in which the recognition and
enforcement of foreign arbitral awards operate. It explores the fundamental principles
and key concepts that underpin commercial arbitration, setting the stage for a more
focused analysis of the role of public policy.
Building upon this foundation, the thesis delves into the international
understandings and applications of public policy, examining different countries’
viewpoints and approaches to public policy as a ground for refusing enforcement.
Through an examination of relevant case studies from diverse jurisdictions, the
complexities and challenges associated with public policy in enforcing foreign
arbitral awards are elucidated. It seems that leading jurisdictions of both common and
civil law systems are heading towards a pro-arbitration approach and a limited scope
of application of public policy on the recognition and enforcement of foreign arbitral
awards.
Moving to the Vietnamese legal context, the analysis of Vietnamese legal texts
reveals the understanding and interpretation of public policy within the Vietnamese
legal framework. By incorporating academic perspectives, the study further explores
the implications of public policy for the recognition and enforcement of foreign
arbitral awards in Vietnam. It finds that the definition of public policy in Vietnam is
still a debated subject.
The research also investigates recent legal developments and reforms in Vietnam,
providing an overview of the Vietnamese legal system’s adherence to international
standards. Noteworthy changes in legislation and evolving judicial practices are
examined to understand their impact on the enforcement regime. Resolution No.
01/2014/NQ-HDTP issued by the Council of Judges of the Supreme People’s Court
serves as a significant reference point, offering guidance on the basic principles of

Vietnam’s law concerning the enforcement of foreign arbitral awards.
Furthermore, the study delves into Vietnam’s approach to the recognition and
enforcement of foreign arbitral awards, examining historical perspectives and court
decisions that highlight the application of public policy in refusing enforcement.
Notably, the thesis provides a compelling case study of six different decisions
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throughout the years, illustrating the complexities and implications of public policy
in the enforcement landscape.
Through a comparative analysis of international standards and practices, the
thesis identifies areas of convergence and divergence between Vietnam’s approach
and global norms. The research findings have implications not only for Vietnam but
also for the broader international arbitration community, highlighting the importance
of understanding the role of public policy in the recognition and enforcement of
foreign arbitral awards.
In conclusion, this thesis contributes to the existing body of knowledge by
providing a comprehensive analysis of the recognition and enforcement of foreign
arbitral awards in Vietnam, with a specific focus on the role of public policy. The
research findings enhance our understanding of the complexities surrounding this
area of law and provide valuable insights for practitioners, scholars, and policymakers
in Vietnam and beyond.
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CHAPTER 1: INTRODUCTION
1.1. Research rationale
The thesis on the impact of public policy on commercial arbitration, with a
particular emphasis on the recognition and enforcement of foreign arbitral awards in
Vietnam, is crucial for a number of compelling reasons.
First, this research is important because it contributes to the development and
improvement of the legal framework that governs international commercial
arbitration in Vietnam. This study fills an important void by shedding light on the
complexities and challenges associated with the application of public policy in the
jurisdiction, thereby contributing to the refinement of the legal framework and its
alignment with international standards. Examining the role of public policy in the
recognition and enforcement of foreign arbitral awards, this study addresses a crucial
aspect of the enforcement regime that has far-reaching implications for domestic and
international parties. A robust and effective legal mechanism for enforcing arbitral

awards is essential as Vietnam continues to position itself as an attractive location for
international investments and cross-border transactions.
In addition, the evolving nature of commercial arbitration in a global context
necessitates this thesis. The recognition and enforcement of foreign arbitral awards is
a topic of significant global interest and importance, as it has a direct bearing on the
enforceability and efficacy of arbitration as the preferred method of dispute resolution
in international commercial transactions. By examining international understandings
and applications of public policy, this study provides valuable insights into the
various approaches adopted by various jurisdictions. This comparative analysis
enriches the academic discourse surrounding public policy and contributes to a
broader understanding of the challenges and best practices associated with enforcing
foreign arbitral awards internationally.
Vietnam’s ever-changing legal landscape also highlights the importance of this
research. As the nation continues to undergo legal reforms and align its legal system
with international standards, the regime for enforcing foreign arbitral awards requires
careful analysis and evaluation. This research captures the current state of the
enforcement framework in Vietnam and explores its implications for the recognition
and enforcement of foreign arbitral awards by analysing recent legal developments
and reforms. This analysis would be a vital resource for policymakers, practitioners,
and scholars involved in formulating and implementing legal reforms in Vietnam,
facilitating informed decision-making, and advancing the legal system.
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Moreover, the current research is important because of the practical implications
it has for businesses and investors engaged in cross-border transactions involving
Vietnam. The recognition and enforcement of foreign arbitral awards have a direct
bearing on the enforceability of contractual obligations, the protection of investments,
and the general stability of the business environment. By providing insights into
Vietnam’s approach to the recognition and enforcement of foreign arbitral awards,
this research equips stakeholders with a thorough understanding of the legal
landscape and potential obstacles. Businesses, practitioners, and investors who wish
to navigate the complexities of international arbitration, plus make informed
decisions when entering into contracts and resolving disputes should possess this
knowledge.
In conclusion, the significance of this thesis – “Impact of Public Policy on
Commercial Arbitration in Vietnam” stems from its contributions to the development
of the legal framework for the recognition and enforcement of foreign arbitral awards
in Vietnam, its insights into international practices and standards, its analysis of recent

legal developments, and its practical implications for businesses and investors. By
addressing these vital aspects, this research serves as a foundational resource that
enriches academic discourse, informs policy decisions, and facilitates the effective
operation of the Vietnamese arbitration regime.
1.2. Literature review
Commercial arbitration has been demonstrated to be an effective alternative
method of dispute resolution. Therefore, in this era of international economic
integration, the recognition and enforcement of foreign arbitral awards are crucial for
the promotion of international trade and investment, as they provide parties with a
dependable and effective dispute resolution mechanism. Public policy is an important
ground for refusing enforcement because it ensures that judgments that violate
fundamental legal principles are not enforced. To ensure the effective enforcement of
foreign arbitral awards in Vietnam, it is crucial to comprehend the concept of public
policy in the Vietnamese legal context and its alignment with international standards.
This thesis’s literature search utilised a vast array of legitimate scholar databases
and libraries, ensuring a thorough examination of the topic. By using keywords such
as “commercial arbitration,” “public policy,” “public policy application in
arbitration,” “public policy as a refusal ground of recognition and enforcement,” and
“foreign arbitral awards,” the author was able to find relevant scholarly resources,
such as academic commentaries, case laws, and legislative reforms that contribute to
the understanding of public policy in the context of international commercial
arbitration.
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The concept of public policy in the context of international commercial
arbitration has been the subject of extensive debate, garnering a great deal of scholarly
and professional interest. These discussions have resulted in a wealth of international
commentary on various aspects of public policy, including its conceptual framework,
definition, and application in arbitration across different jurisdictions.
Notably, the works of renowned lawyer and legal researcher Gary Born have
provided valuable insights into this topic. His article “The New York Convention: A
Self-Executing Treaty” explores the significance and implementation of the New
York Convention, which is highly relevant to the topic of recognition and
enforcement of foreign arbitral awards. Additionally, his publications “International
Commercial Arbitration: Commentary and Materials,” “International Arbitration:
Cases and Materials (3rd edition),” and “International Arbitration: Law and Practice
(3rd edition)” offer comprehensive commentary and analysis of various aspects of
international arbitration, specifically international commercial arbitration. These

works provide valued perspectives that align with the research objectives of this
thesis, making them important references in the exploration of public policy in the
context of foreign arbitral awards in Vietnam.
Moreover, Akosua Serwaah Akoto’s article “Public Policy: An Amorphous
Concept in the Enforcement of Arbitral Awards”, published in 2021, has played a
crucial role in simplifying and consolidating the understanding of public policy,
clarifying the complexities surrounding the concept, and thus providing a cohesive
and accessible explanation. To further explore the application of public policy across
different jurisdictions, the book “Recognition and Enforcement of Foreign Arbitral
Awards - The Interpretation and Application of the New York Convention by
National Courts” by George A. Bermann, in collaboration with over 60 other authors,
offers a comprehensive comparative analysis. Additionally, studies conducted by
Ammara Sharif, Sameer Sattar, and Lafi Mohammad Mousa Daradkeh provide
specific comparisons between different jurisdictions, shedding light on the variations
in public policy application. Moreover, research by international organisations like
the International Finance Corporation (“IFC”), the United Nations (“UN”), and
international conference reports has contributed valuable insights into public policy
in the context of international commercial arbitration.
Within the Vietnamese context, several noteworthy literary works have
contributed to the understanding of commercial arbitration and its related topics. Dr.
Tran Minh Ngoc’s book “Pháp luật về trọng tài thương mại” (Law on Commercial
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Arbitration), published in 2009, serves as a comprehensive resource on the legal
framework of commercial arbitration in Vietnam. Notably, it has also been adopted
as teaching material at Hanoi Law University, highlighting its authoritative status and
relevance in academic settings.
The adaptation of public policy as “the fundamental principles of Vietnam’s law”
has sparked significant discussions in Vietnamese literature. The extensive book
“Vietnam’s Civil Procedure Code, Law on Commercial Arbitration: Commentary and
Adjudication Practice” by Tuong Duy Luong, former Deputy Chief Justice of the
Supreme People’s Court, delves deeply into the interpretation of public policy in
relation to commercial arbitration in Vietnam. This work serves as a valuable resource
for understanding the Vietnamese perspective on this topic. Furthermore, Do Hai
Ha’s contribution, “Bình luận quyết định không công nhận và cho thi hành quyết định
của trọng tài nước ngoài” (Commentary on the Decisions not to Recognise and
Enforce Foreign Arbitral Awards), offers valuable analysis and commentary on
decisions related to the recognition and enforcement of foreign arbitral awards.

Additionally, Nguyen Hong Hai’s article on court precedents in Vietnam sheds light
on the building of the 2015 Civil Code and its implications for arbitration. These
Vietnamese literature sources, among others, provide important insights and
perspectives that enhance the understanding of commercial arbitration and its
application in the Vietnamese legal context.
Acknowledgment is also due to the efforts of the Vietnamese government in
conducting research and providing relevant information on public policy application
through their database and reports. However, it is notable that the available literature
in Vietnam often lacks the level of detail required for a comprehensive examination
of the topic. Vietnamese commentaries tend to focus on individual cases or provide
limited analyses of a few selected cases, such as the work of authors above, Stephan
Le, Logan Leung, and Nguyen Manh Thang. These studies also exhibit a deficiency
in providing comprehensive analyses of the international approach to the application
of public policy as well as the potential lessons that Vietnam can learn from these
approaches. As a result, there is a need for further research that offers a more holistic
view of public policy internationally and in the Vietnamese context, as well as its
implication on the recognition and enforcement of foreign arbitral awards in the
jurisdiction.
Overall, the combination of international and Vietnamese literature, including
scholarly works, books, articles, and research conducted by international bodies and
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the Vietnamese government, forms the foundation for this thesis research. By
synthesising international perspectives and incorporating Vietnamese legal texts and
case law, this research tries to fill the void in the literature by offering a more
comprehensive and in-depth examination of public policy’s impact on the recognition
and enforcement of foreign arbitral awards in Vietnam.
1.3. Research objectives
The research objectives of this thesis are to systematically examine the impact of
public policy on commercial arbitration in Vietnam, with the specific focus on its
relationship with foreign arbitral awards, drawing on practical studies conducted in
various countries and in the jurisdiction. From this examination, the study aims to
provide recommendations for enhancing the legal framework pertaining to this issue
within Vietnam. Therefore, the content of this thesis will highlight the following
objectives:
- To provide a thorough overview of commercial arbitration, arbitral awards, as
well as the concept of public policy in international arbitration and the link
between commercial arbitration and public policy.

- To analyse different countries’ viewpoints and approaches to public policy as a
ground for refusing recognition and enforcement, as well as to examine
relevant case studies from different jurisdictions in both common and civil
legal systems.
- To analyse the understanding and interpretation of public policy in Vietnamese
legal texts, and to incorporate academic perspectives on public policy and the
enforcement of foreign arbitral awards in Vietnam.
- To assess Vietnam’s approach to the recognition and enforcement of foreign
arbitral awards of public policy in refusing enforcement, and exploring notable
Vietnamese cases that provide insights into the practical application of public
policy considerations.
- To compare the Vietnamese approach with international standards and
practices, draw lessons and recommendations.
1.4. Subject matter and scope of research
The subject matter of this thesis revolves around the impact of public policy on
the recognition and enforcement of foreign arbitral awards in Vietnam. This study
draws on international and comparative practices as a foundation for providing
recommendations specific to Vietnam. By adopting an interdisciplinary approach,
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incorporating legal, comparative, and academic perspectives, the thesis aims to
comprehensively explore the conceptual framework, practical implementation, and
recent advancements of public policy within the realm of international commercial
arbitration law and within the jurisdiction.
As for the substantive scope, the thesis would be focused specifically on the
impact of public policy on the recognition and enforcement of foreign arbitral awards
in Vietnam. While public policy may have broader implications in the realm of
commercial arbitration in Vietnam, this research narrows its focus to the specific
aspect of recognising and enforcing foreign arbitral awards.
As for the geographical scope, the research includes an examination of
international concepts and applications of public policy in the recognition and
enforcement of foreign arbitral awards. This involves analysing the perspectives and
practices of various countries, namely the United States, the United Kingdom, India,
Germany, and France, and international bodies in interpreting and applying public
policy as a ground for refusing enforcement. Then it is centred on Vietnam, with a
primary emphasis on the Vietnamese legal system and its approach to the recognition
and enforcement of foreign arbitral awards.
As for the temporal scope, while this research examines the historical perspective

of the application of public policy in Vietnam and around the world, it primarily
focuses on recent legal developments and reforms. This temporal scope allows for an
analysis of the current legal framework, judicial practices, and emerging trends in the
recognition and enforcement of foreign arbitral awards in Vietnam.
1.5. Methodology
In this thesis, the author has adopted a comprehensive research approach that
combines library-based research and case-law analysis. This dual approach allows the
author to explore the topic from both theoretical and practical perspectives, providing
a more well-rounded understanding of the subject matter.
The theoretical viewpoint of this research involves delving into the works of
scholars, experts, and practitioners who have contributed to the fields of public policy
and international arbitration. By consulting books, articles, and projects developed by
relevant public and private international organisations, the author gains insights into
the various solutions and perspectives proposed by these experts. This theoretical
foundation helps the author establish a conceptual framework for understanding
public policy and its implications in the context of international arbitration.
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On the other hand, the practical viewpoint of this research focuses on the judicial
interpretations of the applicable regimes by national courts. By examining case law,
particularly court decisions that involve the recognition and enforcement of foreign
arbitral awards, the author analyses how public policy is interpreted and applied in
real-world scenarios. This practical analysis allows the author to observe the actual
outcomes and implications of public policy considerations in the context of
international arbitration within the specific jurisdiction of Vietnam.
By combining theoretical and practical perspectives, this research aims to bridge
the gap between legal theory and its practical implementation. This approach not only
enhances the depth of this analysis but also provides valuable insights into the
dynamics and challenges associated with the recognition and enforcement of foreign
arbitral awards in Vietnam.
1.6. Research disposition
The thesis, along with charts, references, and appendices, includes the main
contents as follows:
Chapter 1: Introduction
Chapter 2: Theoretical Framework
Chapter 3: Impact of Public Policy on the Recognition and Enforcement of
Arbitral Awards on an International Level

Chapter 4: Impact of Public Policy on the Recognition and Enforcement of
Foreign Arbitral Awards in Vietnam
Chapter 5: Lessons and Recommendations for Vietnam on the Recognition and
Enforcement of Foreign Arbitral Awards with Public Policy Implication. Conclusion
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CHAPTER 2: THEORETICAL FRAMEWORK
2.1. Overview of commercial arbitration
In contemporary times, the number of international commercial transactions in
goods and services has increased alongside globalisation, which has consequently
translated on the flip side to increased prospects of commercial disputes. Although
litigation through court processes has hitherto been the default mechanism for the
resolution of commercial disputes, it is not always the most effective and efficient way
of dealing with commercial disputes (Emelonye and Emelonye 2021, p. 266). As such,
the weaknesses of litigation as a means of resolving commercial disputes have given
rise to alternative dispute resolution mechanisms, and one particularly popular
mechanism is arbitration.
2.1.1. Definitions
First, it is important to understand the definition of commercial arbitration.
Commercial arbitration has emerged as the prevailing approach for resolving
international commercial disputes, garnering weighty attention and study in
universities and law schools due to its dynamic evolution in both legal principles and
practical applications (Redfern 2004, p. 5). As Born stated, “there are almost as many
other definitions of arbitration as there are commentors on the subject” (Born 2021,
p. 4).
Arbitration is recognised as a type of ADR (alternative dispute resolution). The
phrase ADR encompasses a range of procedures other than litigation that are designed
to resolve conflicts. The World Intellectual Property Organisation defines arbitration
as “a procedure in which a dispute is submitted, by agreement of the parties, to one
or more arbitrators who make a binding decision on the dispute. In choosing
arbitration, the parties opt for a private dispute resolution procedure instead of going
to court” (WIPO 2023). In more simple terms, the Legal Information Institute of
Cornell Law School refers to arbitration as “an alternative dispute resolution method
where the parties in dispute agree to have their case heard by a qualified arbitrator
out of court” (LII 2023). The Black’s Law Dictionary, one of the most recognised
legal dictionaries there is, defines arbitration as the investigation and determination
of a matter or matters of difference between contending parties by one or more
unofficial persons, chosen by the parties, and called “arbitrator knowledge” or

“referees” (Garner 2019, p. 83).
Vietnam’s approach to arbitration definition shares similarities with international
scholars. Although there are many different definitions, in general in Vietnam,
arbitration could be understood as: “a non-state (non-governmental) jurisdictional
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dispute resolution method chosen by the parties’ agreement to resolve commercial
disputes. The main arbitrator is a third intermediary selected by the disputing parties
to help the parties resolve their conflicts and disagreements on the basis of ensuring
the parties’ right to self-determination. The arbitration method originates from the
agreement of the parties on a voluntary basis. In arbitration, after considering the
facts, the arbitrator can issue an award that is enforceable against the parties.”
(Vietnam Coordinate Council of Law Popularisation and Education
Acknowledgement 2013, p. 4).
As can be seen, Vietnam recognises commercial arbitration exclusively,
distinguishing it from general arbitration. General arbitration can encompass a wide
range of matters, including both commercial and non-commercial issues (Lew et al.
2003, p. 50–57). In the field of arbitration, there is no fixed definition of
“commercial” at an international level. Which disputes are categorised as
“commercial” may vary dramatically across different countries, legal systems, and
geographic regions. UNCITRAL Model Law noted that the term “commercial”
should be given a wide interpretation so as to cover matters arising from all
relationships of a commercial nature, whether contractual or not. Therefore,
commercial arbitration could be interpreted as “the process of arbitration resolving
commercial disputes”.
While scholars may offer varying definitions of commercial arbitration, there is a
broad consensus regarding its fundamental characteristics. For the purpose of this
thesis, the writer would define commercial arbitration as: a method of dispute
resolution that is consensual-based, by which commercial disputes can be definitely
resolved by independent, non-governmental decision-makers.
Second, there is a need to differentiate domestic and foreign commercial
arbitration. Domestic arbitration refers to the arbitration process that takes place
within the borders of a single country. The applicable laws and regulations governing
domestic arbitration are generally determined by the national legal framework of that
country. Foreign arbitration, however, refers to the arbitration process that takes place
in another country, is regulated by a foreign legal framework, or is resolved by a
committee of arbitrators that are not considered “national” by the country. In
Vietnam, foreign arbitration is an arbitration established in accordance with the

foreign arbitration law selected by agreement by the parties to settle disputes outside
of Vietnam or within the territory of Vietnam (IFC 2017, p. 23).
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Third, another term that is usually discussed on the topic of arbitration is
international commercial arbitration. International commercial arbitration’s primary
purpose is to address disputes arising from international commercial transactions and
provide parties from different jurisdictions with a neutral forum for resolution (Born
2021, p. 2). Through theory and practice, the internationality of arbitration is often
expressed through two aspects: the nature of the dispute, which involves cross-border
elements, and the identity of the parties, considering differences in nationality or
permanent residence.
2.1.2. Characteristics
From the above definitions, most agree that commercial arbitration possesses
distinct features, including:
1. Consensual Basis: Arbitration is based on the voluntary agreement of the
parties involved. It is a private dispute resolution method that the parties
themselves choose and concur upon, typically by including an arbitration
clause in their contract. Therefore, it allows the parties to shape the arbitration
proceedings according to their specific needs and preferences.
2. Definitive Dispute Resolution: Arbitration serves as a mechanism for the
conclusive resolution of disputes. It offers parties a means to reach a final and
binding decision on their disagreements.
3. Independence and Non-Governmental Decision-Makers: Arbitration involves
the appointment of impartial decision-makers who are independent of the state
or government. The parties choose these arbitrators, who are typically one or
an odd number, and give them the authority to make impartial decisions.
Arbitration’s characteristics make it an attractive method of dispute resolution
alongside traditional litigation. Some of the advantages of commercial arbitration
could be listed below (Mazirow 2008, p. 1–2; Edwards 2016, p. 18–26; Moses 2017,
p. 3; Born 2021, p. 23–25; Ngoc 2019, p. 16–20):
First, arbitration provides flexibility and party autonomy, allowing the parties to
tailor the arbitration process to their specific needs and preferences. They can select
the arbitrators, determine the procedural rules, and agree on the timeline for resolving
the dispute. For example, commercial arbitration allows parties to choose arbitrators
with expertise and experience specifically tailored to the subject matter of the dispute.
This flexibility promotes efficiency and ensures that the arbitration proceedings are
conducted in a manner that best suits the parties.

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Second, unlike court proceedings, which are generally public, arbitration, with its
private characteristics, offers confidentiality, providing a private and discreet forum
for resolving disputes. This confidentiality protects sensitive information and allows
parties to maintain their reputations and relationships.
Third, neutrality is a substantial advantage of commercial arbitration, ensuring
that the decision-making process is fair and unbiased. Different from national courts,
which are associated with a specific legal system and may be subject to local biases
or influences, arbitration offers a neutral forum for resolving commercial disputes.
Fourth, arbitration decisions are generally final and binding, providing certainty
and a conclusive resolution to the dispute. This finality enables the parties to move
forward without the uncertainty and potential delays associated with court litigation.
However, arbitration is not a proceeding without flaws. One of the biggest
disadvantages of arbitration is the potential difficulties that parties may encounter
when it comes to the process of recognition and enforcement. Although arbitral
awards are binding, arbitration centres or arbitrators themselves do not have the direct
authority to enforce them. This is because arbitration operates on a consensual basis
and relies on the parties’ cooperation to comply with the arbitral tribunals’ decisions.
Therefore, when one of the parties does not voluntarily comply with the award,
national courts could step in to provide assistance. The other party could apply to the
courts of the jurisdiction where the non-compliant party has assets, seeking
recognition and enforcement of the award (Nayed 2023, p. 57).
The lack of harmonisation in the recognition and enforcement of arbitral awards
across different jurisdictions might arise as an issue in this case. Given the
multinational nature of many arbitration cases, enforcing awards in foreign countries
may entail navigating disparate legal systems with varying laws and procedures. This
lack of uniformity can lead to inconsistencies and pose difficulties in enforcing
awards, hindering the efficacy of the arbitration process.
The recognition and enforcement of foreign arbitral awards play a crucial role in
the effectiveness and credibility of commercial arbitration as a means of resolving
international disputes. To ensure the continued relevance of commercial arbitration,
it is important to enhance awareness of these drawbacks and work towards the
development of more efficient and effective mechanisms for the recognition and
enforcement of arbitral awards. This thesis aims to explore and discuss these issues,
with a particular focus on certain aspects of the recognition and enforcement of
foreign arbitral awards, which will be addressed below.
12

2.1.3. Arbitral awards, types of arbitral awards, their recognition and
enforcement
2.1.3.1. Arbitral awards
In the context of arbitration proceedings, an arbitral award is a binding decision
or judgement issued by an arbitrator or panel of arbitrators based upon the submission
made to them in an arbitration. It serves as the resolution of a dispute between the
involved parties and is legally binding and enforceable, deeming the dispute settled.
Arbitral awards generally cannot be appealed to the same extent as court judgments
and are not subject to re-trial, which underscores their role in expeditious dispute
resolution (Turner 2005, p. 3).
2.1.3.2. Types of arbitral awards
Arbitral awards can be categorised into different types based on their nature and
purpose. One popular classification includes interim awards, partial awards, consent
awards, final awards, and additional awards (Drličková 2023, p. 7–8). Interim
awards
Interim awards or reliefs serve as temporary measures that can be granted during
an ongoing arbitration process before the issuance of the final award. Examples of
interim measures include orders to prevent the destruction of assets, preserve goods,
or authorise the sale of perishable goods. The arbitrator may also require the posting
of a letter of credit or other form of security for the final award. The authority to grant
interim relief is typically provided by applicable laws, the rules of the arbitration
provider, or the parties’ agreement. Additionally, the arbitrator may impose sanctions
for non-compliance with interim orders (Roth 2012, p. 425–426).
Partial awards
Partial final awards are issued when the arbitrator or arbitral tribunal resolves a
particular aspect or issue of the dispute that can be determined definitively apart from
other unresolved matters. This type of award permits the resolution of specific issues
while the arbitration proceedings continue to address the remaining disputes. It
indicates that the arbitrators’ role has not yet been fulfilled and that the arbitration is
still open for the resolution of any outstanding issues. This allows the parties to move
on to subsequent stages of the arbitration, eliminating the need to wait until the entire
dispute has been resolved before obtaining a binding ruling on certain aspects of the
claims (Singer and Hanson 2019, p. 102).
13
Consent awards
In a scenario where the parties have agreed on certain issues of their dispute but
there are still unresolved disputes remaining, they may opt for a partial consent award.

A consent award is an award that incorporates the agreed-upon terms or resolutions
into the final award. In most cases, unlike other awards, the consent award must be
signed by all consenting parties. The consent award outlines the specific terms of the
settlement that the parties agreed on, which can be enforced. However, if the parties
have successfully agreed to resolve all of their disputes, the consent award will
acknowledge this comprehensive agreement. In this situation, the award serves as the
final resolution of the entire dispute, stating that the parties have resolved their
differences through a negotiated agreement and declaring that the dispute is
considered resolved. This approach recognises the parties’ autonomy and their ability
to reach a mutually satisfactory resolution without further intervention from the
arbitrator (Spahiu 2019, p. 62).
Final awards
An international arbitral award must be final so that it may be subject to a request
for judicial recognition and enforcement in a particular state, as the provisions of the
New York Convention, which govern the recognition and enforcement of arbitral
awards (Uncitral Secretariat et al., 2017, p. 17). The requirement for a final award
underscores the importance of achieving a definitive resolution in arbitration,
allowing for the parties’ compliance and the assurance of enforceability across
different jurisdictions. According to Robert D.A. Knutson, it can be concluded that
the term arbitral “final award” refers to a tribunal award that solves all disputes
between the parties, effectively ending the tribunal’s task, which becomes functus
officio (without any further jurisdiction) (Knutson 1994).
Additional awards
An additional award is a mechanism available to parties in arbitration when there
are unresolved issues or disputes even after the issuance of the final award. While the
authority of the tribunal typically ends with the final award, parties have the option to
request an additional award specifically addressing the remaining undecided matter.
The tribunal, upon receiving a request for an additional award, will evaluate the merits
of the request and determine whether it is appropriate to issue an additional award. If
the tribunal decides to proceed with an additional award, it will conduct the necessary
proceedings to address the remaining dispute. They will then render a
14
decision specifically addressing the outstanding issue and provide the parties with an
additional award (Nayed 2023, p. 60–61).
A fundamental classification of arbitral awards in the field of international
arbitration is based on their geographical scope and enforceability, distinguishing
between domestic and foreign arbitral awards. This classification is pivotal in

determining the legal framework under which awards are recognised and enforced.
Domestic arbitral awards are those rendered in arbitration proceedings within the
borders of a single country. In these cases, both the dispute itself and the arbitral
proceedings are confined to the jurisdiction of that specific country. Typically,
domestic arbitral awards are subject to the national laws and regulations governing
arbitration within that jurisdiction. Foreign arbitral awards, on the other hand, are
those issued in arbitration proceedings that transcend national borders. These awards
often result from international commercial disputes or investment treaty arbitrations
where parties from different countries are involved. A crucial element distinguishing
foreign awards is their potential for enforcement across international boundaries
through international enforcement mechanisms, notably the New York Convention.
(Pisar 1959, p. 16–29).
2.1.3.3. Recognition and enforcement of foreign arbitral awards Though
recognition and enforcement of foreign awards look like a single concept,
recognition differs from enforcement. Recognition refers to the formal
acknowledgment by a country’s judicial system that an arbitral award is valid, final,
and legally binding, involving a review of the award to ensure that it meets certain
legal requirements and criteria for recognition in that jurisdiction. The purpose of
recognition is to establish the award’s legal status and enforceability in the country
where recognition is sought, determining that the dispute has already been resolved.
On the other hand, enforcement relates to the practical steps taken to enforce a
recognised foreign arbitral award. Once an award is recognised, the winning party
may seek enforcement, ensuring that the award is carried out by the relevant court
system, which may involve various procedures and mechanisms depending on the
laws and regulations of the jurisdiction (Amro 2014, p. 5).
It is worth noting that parties also have the right to challenge or set aside an arbitral
award based on specific grounds provided by applicable laws or arbitration rules. The
grounds for this right can vary depending on the jurisdiction and the governing laws
or rules. In certain cases, allegations of fraud, corruption, or a public policy’s
violation would also be reviewed (Bermann 2017, p. 292).
15
The process of challenging or setting aside an award typically involves filing an
application or petition before the relevant court or tribunal. The court or tribunal will
then review the grounds put forth by the challenging party and assess their merit. If
the challenge is successful, the court may modify or annul the award, leading to a
potential re-opening of the dispute or a new arbitration proceeding.
In conclusion, arbitration is an attractive form of dispute resolution due to its

inherent characteristics and advantages, with the ultimate objective being to provide
parties with a final and binding resolution through a final arbitral award. It has also
facilitated inter-regional global business climate and trade and ultimately served as
an essential mechanism for efficient disposal of disputes arising out of and between
business transactions (Emelonye and Emelonye, 2021, p. 267). In instances of non
conformity, the foreign award can be recognised and enforced by the relevant national
courts, ensuring its effectiveness and implementation. Yet, in certain situations, the
award may face challenges or be subject to setting aside procedures based on specific
conditions. One of the bases for the refusal of recognition and enforcement of a
foreign arbitral award is related to public policy, which will be further explored in the
subsequent part of the thesis.
2.2. Overview of public policy
2.2.1. Concepts
Public policy is a concept that has long been ingrained in legal systems across
various jurisdictions (Ellenbogen 1952, p. 663). While the expression of public policy
may not be new, its interpretation and application in specific contexts, such as
commercial arbitration, continue to evolve and adapt to the changing needs and
expectations of society. The notion of public policy is a significant and frequently
discussed aspect in the context of arbitration within international commercial law
(Kronke et al. 2015, p. 365–367; Tosun 2019, p. 33–36).
The Black’s Law Dictionary defines “public policy” as:
“1. Broadly, principles and standards regarded by the legislature or by the courts
as being of fundamental concern to the state and the whole of society Courts
sometimes use the term to justify their decisions, as when declaring a contract void
because it is “contrary to public policy...
2. More narrowly, the principle that a person should not be allowed to do
anything that would tend to injure the public at large.”
Further, Black’s Law Dictionary also cites the definition of “public policy” as
borrowed from authoritative sources: “The policy of the law, or public policy, is a
16
phrase of common use in estimating the validity of contracts. Its history is obscure; it
is most likely that agreements that tended to restrain trade or to promote litigation
were the first to elicit the principle that courts would look to the interests of the public
in giving efficacy to contracts.” (Garner 2019, p. 965).
Nonetheless, the precise scope and application of public policy in arbitration
remain subjects of ongoing debate and interpretation among scholars, practitioners,
and legal authorities. Its interpretation can vary across different jurisdictions and legal

systems, adding complexity to the analysis of arbitral decisions and the enforcement
of awards in the international arena. Still, theories agree that public policy reveals
“some moral, social, economic, or legal principles” (Berger 1993, p. 939).
According to Mark A. Buchanan, public policy is the final perimeter of the law
that is reflected in and often expressed by statutory and constitutional statements of
law. Public policy primarily exists at the domestic level within each individual state.
At the national level, it encompasses the fundamental principles and values of a
particular country, including societal norms, ethics, and legal standards aimed at
protecting public interests. Its purpose is to safeguard the integrity and welfare of the
nation’s legal system. Public policy places restrictions on the parties’ ability to
contract by establishing rigid standards or rules that they cannot change or disregard.
It draws a line between private and public autonomy, where, for example, mandatory
rules of that jurisdiction disregard private autonomy (Buchanan 1988, p. 21).
What is understood as public policy at a national level is not necessarily public
policy at an international level. Indeed, the concept of public policy can differ
between these levels. What is considered public policy in one jurisdiction may not
necessarily align with the public policy concerns of another jurisdiction. Moreover,
international public policy is recognised to be more limited compared to national
public policy because not every domestic public policy rule is automatically part of
international public policy. Many states would not strictly impose all of the
constraints of their public policy upon international trade, where more freedom and
flexibility are often regarded as a requirement. Essentially, international public policy
is usually a state’s objectives or values that govern international relations, which are
subjective to each state. (Buchanan 1988, p. 3–4; IFC 2017, p. 140; Akoto 2021, p.
54; Sharif et al. 2021, p. 1766).
Another concept often linked to public policy is that of transnational or truly
international public policy. Transnational public policy refers to principles that
represent a universal agreement on collective norms and presumed standards of
17
conduct that should always be applied (Pryles 2007, p. 1–7). Such public policy is
well-defined as evolving out of an international consensus involving universal
standards that are widely recognised and deemed unacceptable in most civilised
countries, such as bribery, corruption, slavery, religious discrimination, murder, and
terrorism. Therefore, transnational public policy is considered to have a narrower
scope than international public policy, reflecting a more restrictive set of principles
and standards (Ryabinin 2018, p.5).
For the purpose of this thesis, public policy would be referred to as a set of

fundamental principles, values, and legal standards that a country deems essential for
the well-being and moral order of the nation. These principles are typically reflected
in laws, regulations, and judicial decisions. In the context of arbitration, the concept
of public policy could be invoked to ensure that arbitral awards do not violate
fundamental principles or values that are considered sacrosanct by this particular
jurisdiction. When an award is said to be against public policy, it may be subject to
annulment or refusal of enforcement by the national courts.
The thesis would also acknowledge that public policy can vary from one
jurisdiction to another, reflecting the cultural, social, and legal norms of each society.
The understanding and actual application of public policy, whether domestic,
international or transnational would be further discussed in later parts of this thesis.
2.2.2. Types of public policy
Public policy could be interpreted in two different classifications. The
International Law Association (“ILA”) Resolution of 2002 provides a useful
framework for understanding the concept of public policy in the context of
international arbitration, distinguishing between procedural public policy and
substantive public policy, each serving distinct purposes in the arbitration process.
Procedural public policy concerns the fairness and integrity of the arbitration
procedure itself. It focuses on ensuring that fundamental principles of due process are
upheld throughout the arbitration proceedings. This includes principles such as the
right to be heard, equality of the parties, and the absence of any fraudulent or
deceptive conduct by the arbitrator. Procedural public policy safeguards the integrity
of the arbitration process and guarantees that the parties are given a fair opportunity
to present their case and have their arguments considered (Sharif et al. 2021, p. 1768).
On the other hand, substantive public policy pertains to the merits of the disputes
being resolved through arbitration. It encompasses principles and values that are
considered fundamental to the legal system of a particular jurisdiction. Substantive
18
public policy is concerned with preventing the enforcement of arbitral awards that
are manifestly contrary to the fundamental legal principles or values of a country
(Shepard, 2003, p. 230).
By distinguishing between procedural and substantive public policy, the ILA
Resolution acknowledges the need to ensure fairness in the arbitration process while
also protecting the fundamental principles and values that underpin the legal system.
It underscores the importance of adherence to due process principles in arbitration
proceedings and the need to prevent the enforcement of awards that would undermine
the integrity or violate the core values of a jurisdiction. Providing a clear distinction

between procedural and substantive public policy, the Resolution offers guidance on
how public policy considerations should be assessed and applied by national courts
when reviewing arbitral awards.
2.3. The link between commercial arbitration and public policy As generally
argued and discussed in the previous part of this thesis, international arbitration has
emerged as the preferred method of cross-border trade and investment dispute
resolution. However, it is known that international commercial arbitral awards are
enforceable only through the domestic legal systems and to the extent that the
foreign arbitral awards are compatible with national principles and standards
(Emelonye and Emelonye, 2021, p. 267) in cases of non-comformity. Even parties
who consent to international commercial arbitration must ultimately petition the
national court system for the enforcement of the arbitral award; they will come face-
to-face with the public policy exception (Tosun, 2019, p. 1–2). The enforceability
and recognition of arbitral awards are subject to the scrutiny of national courts,
which must balance the principle of party autonomy with the safeguarding of public
policy interests (Cordero Moss 2015, p. 187).
One of the fundamental aspects of the link between commercial arbitration and
public policy lies in the enforceability of arbitration agreements. Courts, cognizant of
the need to alleviate the burden on the overloaded court system and promote efficient
dispute resolution, generally recognise and uphold arbitration agreements as a matter
of public policy (Lew et al. 2003, p. 157). By recognising the validity and
enforceability of arbitration agreements, courts support the principle of party
autonomy, which is considered as a manifestation of public policy, allowing parties
to choose their preferred method of dispute resolution (Emelonye and Emelonye,
2021, p. 267).
19
However, public policy considerations could serve as a limitation on the scope of
arbitration. While private parties have the freedom to choose arbitration as a dispute
resolution mechanism, certain matters of public interest cannot be subjected to
arbitration. Public policy may exclude specific types of disputes from arbitration,
such as those involving labour law, consumer protection, antitrust, or intellectual
property issues. These limitations ensure that important public policy concerns, such
as protecting vulnerable parties or preserving fair competition, are not compromised
by private arbitration (Cordero-Moss, 2015, p. 185; Tosun 2019, p. 54).
Moreover, the judicial review of arbitral awards holds significant implications for
public policy considerations. Courts exercise a supervisory function to ensure that
arbitral awards do not contravene fundamental principles of public policy. This

control mechanism prevents arbitration from becoming a vehicle for the enforcement
of awards that are contrary to public policy considerations, such as those tainted by
corruption, fraud, or human rights abuses. (Landolt 2014, p. 92).
Furthermore, the public policy exception is enshrined in both international and
national legal frameworks governing arbitration. The New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, a cornerstone of
international arbitration, incorporates a public policy exception that allows courts to
refuse the recognition and enforcement of foreign arbitral awards that violate public
policy (Schreuer et al., 2018, p. 3; Van den Berg, 2017, p. 47). Courts may set aside
or refuse enforcement of arbitral awards if their enforcement would be contrary to
public policy considerations (Junita 2015, p. 141–142).
In the international context, where disputes involve parties from different
jurisdictions, the harmonisation of public policy considerations becomes vital.
Divergent public policy norms across jurisdictions can present challenges to the
enforcement of arbitral awards. International arbitration instruments and conventions
aim to reconcile these disparities and promote uniformity in the recognition and
enforcement of arbitral awards. By incorporating a public policy exception, these
instruments strike a delicate balance between respecting party autonomy and
safeguarding public policy interests (Armo 2014, p. 11).
Arbitral institutions and rules also play a significant role in addressing public
policy concerns. They provide guidance to arbitrators in navigating public policy
considerations during the arbitration process (Berger, 2018, p. 477). The inclusion of
public policy safeguards within arbitral procedures ensures that arbitration aligns with
broader societal interests and fundamental legal principles. Arbitrators, as
20
impartial decision-makers, are entrusted with the responsibility of issuing awards that
respect public policy considerations while remaining faithful to the intentions of the
parties involved (Marvel, 2018, p. 5).
In conclusion, the interplay between commercial arbitration and public policy is a
crucial aspect of the international dispute resolution landscape. While arbitration
offers parties flexibility, efficiency, and party autonomy, public policy considerations
serve as important limitations on the scope and enforceability of arbitral awards.
National courts play a pivotal role in reviewing arbitral awards for compatibility with
public policy, striking a balance between respecting party autonomy and safeguarding
the broader public interest. International instruments and conventions contribute to
the harmonisation of public policy considerations across jurisdictions, ensuring
uniformity and predictability in the recognition and enforcement of arbitral awards.

By upholding public policy while respecting party autonomy, the international
arbitration framework strives to provide an effective mechanism for resolving cross
border disputes in a manner that is consistent with the principles and values of
different legal systems. The impact of public policy on the recognition and
enforcement of foreign arbitral awards will be further discussed in the next sections
of this thesis.
21
CHAPTER 3: IMPACT OF PUBLIC POLICY ON COMMCERCIAL
ARBITRATION ON AN INTERNATIONAL LEVEL
3.1. Overview of the legal framework in international conventions on the
recognition and enforcement of foreign arbitral awards.
3.1.1. History
The foundations of the contemporary legal regime for international commercial
arbitration were laid at the turn of the 20th
century (Born 2021, p. 37). During this
time, major developments took place that established the basic legal framework for
international arbitration, particularly concerning the recognition and enforcement of
foreign arbitral awards. The 1923 Geneva Protocol and the 1927 Geneva Convention
played crucial roles in shaping this framework. However, it was during the latter half
of the 20th
century that the current legal regime for international commercial
arbitration truly took shape (Schinazi 2021, p. 116). Countries from all around the
world began entering into international arbitration conventions, with the new New
York Convention of 1958 being a landmark instrument (Born 2021, p. 39). This
convention aimed to facilitate the recognition and enforcement of foreign arbitral
awards, and its widespread adoption by numerous countries solidified its significance
in international arbitration.
3.1.1.1. Geneva Protocol and Geneva Convention
In the 1920s, there was a growing recognition among businessmen and lawyers in
developed countries about the need for legislation to facilitate the use of arbitration
in resolving both domestic and international commercial disputes. The expansion of
international trade and investment further underscored the need for a robust legal
framework in this regard (Born 2021, p. 33–34, Benson 1995, p. 491).
To address these concerns, negotiations were undertaken in 1923 under the
auspices of the newly formed International Chamber of Commerce (“ICC”), with the
astounding result of the Geneva Protocol on Arbitration Clauses in Commercial
Matters. While sometimes underappreciated, the Geneva Protocol played a critical
role in the development of the legal framework for international commercial
arbitration.

Indeed, the Geneva Protocol, despite its brevity, addressed significant issues that
were hindering the development of international commercial arbitration at the time.
It introduced important principles regarding the recognition and enforcement of
arbitral awards that continue to have a profound impact on the field of international
22
arbitration today: the presumptive validity of agreements to arbitrate1
and the
obligation of national courts to enforce arbitration agreements2
and awards3
. The
themes and principles introduced by the Geneva Protocol resurfaced repeatedly in
subsequent international conventions and national legislation over the next several
decades. They formed the foundation of the contemporary legal framework for
international commercial arbitration (Adam 2000, p. 12–14).
The Geneva Protocol of 1923 garnered significant international support and was
ratified or acceded to by thirty states, many of which were influential members of the
international trading community at that time. These included countries with strong
economic activity and commercial ties such as Brazil, the British Empire, France,
Germany, India, Italy, Japan, and Switzerland (Fouchard & Goldman 1999, p. 121).
The wide participation of major trading nations demonstrated the recognition of the
importance of facilitating international commercial arbitration for promoting global
trade and resolving cross-border disputes.
Yet, the Geneva Protocol of 1923 reflected a somewhat limited perspective on
international commercial arbitration prevalent at that time. The language of the
Protocol demonstrated a territorial mindset, primarily focusing on the enforcement of
arbitral awards made within the territory of each contracting state4
, without explicitly
addressing the recognition and enforcement of foreign awards. This approach to
enforcement indeed made the commitment to enforce arbitral awards dependent on
the domestic arbitration legislation of each state. Thus, even with arbitral proceedings
that were conducted in a member nation, there was no guarantee of enforcement if the
place of the award was not the place of enforcement (Schooler 2019, p. 2). Hence, the
effectiveness and consistency of enforcement could vary from one jurisdiction to
another, depending on the specific domestic provisions and interpretations of the
national laws.
This treatment of arbitral awards in Article 3 of the Geneva Protocol has been
subject to debate and criticism. It has been argued that this provision was somewhat
tentative and incomplete, failing to provide a comprehensive and harmonised
framework for the enforcement of arbitral awards. The limitations of the Geneva
Protocol’s enforcement mechanism became apparent over time (Contini 1959, p.

1
Geneva Protocol on Arbitration Clause in Commercial Matters, 1923, Article 1.
2
Ibid., Article 2.
3
Ibid., Article 3.
4
Geneva Protocol on Arbitration Clause in Commercial Matters, 1923, Article 3, “Each Contracting State undertakes to
ensure the execution by its authorities and in accordance with the provisions of its national laws of arbitral awards made
in its own territory…”
23
289–291), prompting the need for further developments in the field of international
arbitration.
The Geneva Convention for the Execution of Foreign Arbitral Awards of 1927
was indeed a significant development following the Geneva Protocol of 1923, aiming
to address the deficiencies of the Protocol in dealing with the recognition and
enforcement of foreign arbitral awards. The Geneva Convention expanded the
enforceability of awards rendered pursuant to arbitration agreements subject to the
Geneva Protocol. Unlike the Protocol, the Convention required the recognition and
enforcement of such “foreign” awards within any contracting state.5
This expansion
broadened the reach and enforceability of foreign arbitral awards.
Additionally, the Convention introduced an important provision that prohibited
substantive judicial review of the merits of arbitral awards during recognition
proceedings. 6
This meant that courts in the enforcing state could not re-examine the
merits of the award but were instead limited to reviewing certain procedural aspects
and ensuring compliance with public policy. Public policy was explicitly recognised
as a ground for refusing recognition and enforcement of arbitral awards, allowing the
courts of the enforcing state to assess whether the enforcement of an award would be
contrary to its fundamental principles of justice and morality7
. Nevertheless, because
of its structural deficiencies, this Convention did not meaningfully resolve the issue
of enforcement of an award (Volz & Haydock 1996, p. 874–876). At that time, the
domestic law of the enforcing country was still usually governing the enforcement of
foreign arbitral awards (Senger-Weiss 1998, p. 3).
Overall, despite having some shortcomings, the Geneva Protocol and Geneva
Convention were major steps towards today’s legal framework for international
commercial arbitration. Most fundamentally, both instruments established, if only
imperfectly, the basic principles of the presumptive validity of international
arbitration agreements and arbitral awards and their enforceability by specific
performance, as well as the parties’ autonomy to select the substantive law governing
their relations and to determine the arbitration procedures.
3.1.1.2. The New York Convention
The United Nations Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, commonly known as the New York Convention, is a pivotal

5
Geneva Convention on the Execution of Foreign Arbitral Awards, 1927, Articles 1–4.
6
Ibid., Article 1(d).
7Ibid., Article 1(e).
24
international treaty in the field of international commercial arbitration, succeeding the
Geneva Protocol and the Geneva Convention as the primary legislative instrument for
the recognition and enforcement of foreign arbitral awards. It provides a
comprehensive framework for the recognition and enforcement of foreign arbitral
awards and sets out a uniform and pro-arbitration regime that aims to promote the
finality and enforceability of arbitral awards (Lu 2006, p. 749–750). The Convention
has been ratified by a large number of countries8
, making it one of the most widely
embraced international treaties in the field of dispute resolution. Most importantly, its
broad terms and principles have provided a solid foundation for national courts and
arbitral tribunals to develop effective mechanisms for the enforcement of international
arbitration agreements and arbitral awards (Van den Berg 2017, p. 55).
The drafting process of the New York Convention began with ICC in 1953. The
ICC recognised the need for an updated and improved legal regime for international
arbitration, stating that the Geneva Convention of 1927 “no longer fully met the
requirements of modern economic needs”. The objective was to establish a new
international system for the enforcement of arbitral awards. Therefore, the New York
Convention was designed to facilitate the enforcement of international arbitration
agreements and ensure the effective recognition and enforcement of arbitral awards
across national borders (ICC 1953).
The ICC and the United Nations’ Economic and Social Council collaborated to
draught a revised international arbitration convention. Building on these preliminary
texts, the 1958 United Nations Conference on Commercial Arbitration was held in
New York, attended by representatives from 45 states. It was during this conference
that the New York Convention was formulated (Born 2018, p. 117–119).
Only the United States and a few other nations abstained from voting on June 10,
1958, when the conference unanimously approved the text of the New York
Convention (Sanders 1959, p. 43). The Convention is available in multiple languages,
including English, French, Spanish, Russian, and Chinese, with equal authenticity
attributed to each version9
. With its concise length, the Convention’s significance lies
in its seven succinctly drafted provisions, encompassing Articles I through VII.
The New York Convention brought about momentous improvements to the
enforcement regime established previously by the Geneva Protocol and Geneva
Convention. It introduced a comprehensive international legal framework for

8
By 2023, the New York Convention has 172 contracting states (New York Arbitration Convention 2023). 9
The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Article XVI
25
international commercial arbitration, encompassing arbitration agreements, arbitral
proceedings, and the recognition of arbitral awards. By consolidating these aspects
into a single instrument, the Convention provided a cohesive structure that covered
the entire lifecycle of international arbitrations. It was deliberately drafted with broad
and general terms to serve as a flexible legal framework applicable to a wide range
of states and legal systems (Hammash & AlShakhanbeh 2017, p. 47). This approach
allows for the evolution and development of the Convention’s interpretation over
time as new issues arise and as national courts and arbitral tribunals grapple with
complex situations. The Convention’s underlying objectives guide this interpretative
process.
One of the Convention’s key achievements was establishing a legal framework
that ensured that the outcomes of these proceedings could be effectively enforced in
national courts worldwide. By providing a clear and unified set of rules, the
Convention facilitated the resolution of international commercial disputes through
arbitration, promoting a pro-enforcement bias (Greenwood 2019, p. 3).
In practice, the effectiveness of the Convention relies on the enactment of national
legislation by each contracting state. The content of these national laws, as well as the
interpretations given by national courts to both the Convention and the implementing
legislation, determine the practical impact of the Convention within each jurisdiction
(Lew et al. 2003, p. 53–78).
Due to its brevity, the process of interpreting and applying the Convention may
vary in different jurisdictions, and it can sometimes be slow or inconsistent. However,
given that commercial demands and conditions are constantly changing, this
flexibility is well suited to the evolving needs of the international arbitral process. It
also reflects the constitutional structure of the Convention, which strikes a balance
between the role of national law and national courts in the international arbitral
process and the international framework and limitations set by the Convention’s
provisions (Born 2021, Cassimatis 2019, p. 36–47).
3.1.2. Public policy under the New York Convention
Once the arbitration process is completed and a final and binding award is issued,
the Convention requires Member States to give due consideration to the recognition
and enforcement of that award10
. It is essential to note, however, that the finality and
binding nature of the award do not imply that it cannot be challenged or overturned.

10
Ibid., Article III.
26
In accordance with the New York Convention and national statutes, the grounds for
setting aside or refusing to enforce an arbitral award are limited and clearly defined.
Article V of the New York Convention outlines the specific grounds on which a
contracting state may refuse recognition and enforcement of an arbitral award. These
grounds can be raised either at the request of the party against whom the award is
invoked11
, or on the court’s own motion12
. Drawing from the precedent set by the
Geneva Convention, Article V(2)(b) of the New York Convention empowers courts
to refuse recognition and enforcement of an award if it is found to be contrary to the
public policy of the contracting state.
“Article V
2. Recognition and enforcement of an arbitral award may also be refused if
the competent authority in the country where recognition and enforcement is
sought finds that:
(b) The recognition or enforcement of the award would be contrary to the
public policy of that country.”
While Article V lists specific grounds for refusal of recognition and enforcement,
the mere existence of these grounds does not necessarily result in the award’s non
enforcement. The use of “may” rather than “shall” in Article V indicates that the
justifications for refusal of enforcement are not mandatory and that the court retains
the authority to decide whether enforcement should be granted or denied. This
suggests that the court has the discretion to evaluate the circumstances and determine
whether the award should be enforced despite the existence of any grounds for refusal.
By retaining this discretionary power, the New York Convention strikes a balance
between its pro-enforcement bias and the need to ensure that enforcement is not
granted in cases where it would be contrary to the fundamental principles and interests
of the enforcing jurisdiction. It acknowledges that there may be exceptional situations
in which enforcement should be withheld in order to preserve the integrity of the
national legal system (Junita 2015, p. 141–142).
Public policy is believed to be one of these situations. Although not exclusive to
the New York Convention, public policy is an integral part of various legal tools, such
as mandatory rules, which allow courts to safeguard the integrity of their legal
systems. The divergence in the definition and interpretation of public policy across
different states underscores the absence of a universal consensus on its scope. As
11
Ibid., Article V(1).
12
Ibid., Article V(2).

27
discussed, despite ongoing international discussions, there remains no universally
agreed-upon understanding of the contents of public policy (Sattar 2011, p. 14).
Consequently, the New York Convention entrusts national jurisdictions with the
authority to interpret and apply public policy according to their own legal systems.
Overall, in developed arbitral jurisdictions, both in civil law and common law
systems, there is a prevailing trend of interpreting public policy in a narrow manner.
National courts in these jurisdictions often adopt a pro-enforcement attitude towards
arbitral awards, considering them an integral part of public policy itself, and exercise
their discretion to refuse recognition and enforcement of foreign arbitral awards under
the New York Convention in exceptional cases only13
. It is important to note,
however, that the interpretation and application of public policy may still vary to some
extent among different jurisdictions, even within the broader framework of a pro-
enforcement approach. The specific legal and cultural context of each jurisdiction can
influence the courts’ understanding of public policy and its application in the
recognition and enforcement of arbitral awards. Differences in public policy’s
definition across jurisdictions poses a challenge, making it crucial to examine how
leading states apply and view the public policy principle (Emelonye and Emelonye,
2021, p. 269).
Therefore, the subsequent part of the thesis will delve into the specific viewpoints
and applications of the public policy principle by different countries, shedding light
on the diverse approaches taken in this regard.
3.2. Impact of public policy on commercial arbitration in the common law
system
3.2.1. The United States
The United States became a party to the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards in 1970. To give effect to
the Convention, Congress incorporated its provisions into Chapter 2 of the Federal
Arbitration Act (the “FAA”) as “The Convention on the Recognition and
Enforcement of Foreign Arbitral Awards of June 10, 1958, shall be enforced in United
States courts in accordance with this chapter”14
. This incorporation by reference
ensures that the Convention is enforceable in U.S. courts in accordance with the rules
and procedures set forth in the FAA.
13 See part 3.2. of this thesis.
14
9 U.S.C. §201 (2012).
28

Since this incorporation, the courts in the United States have generally adopted a
conservative approach when it comes to interfering with international arbitration and
addressing public policy concerns. Indeed, the case of Scherk v. Alberto-Culver Co.15
is widely regarded as a landmark decision highlighting pro-arbitration public policy
in the United States.
In Scherk v. Alberto-Culver Co., the Supreme Court recognised that enforcing an
arbitration agreement is essential for fostering international business relationships. A
parochial approach, which would invalidate such agreements and require disputes to
be resolved exclusively in domestic courts, would be detrimental to international
trade, the Court emphasised. The Court acknowledged the need for a global
framework that permits parties to settle their disputes through arbitration, recognising
that international trade and commerce cannot flourish if every dispute is subject to the
laws and jurisdiction of a single nation. (Sattar 2011, p. 5).
A notable illustration of the pro-arbitration stance of US courts is the case of
American Construction Machinery & Equipment Corporation Ltd. v. Mechanised
Construction of Pakistan Ltd.16
In this instance, the Southern District of New York
disregarded the Pakistani court’s disapproval of the arbitration agreement and the ICC
arbitral award. Instead, the court emphasised the significance of enforcing the arbitral
award, citing the possibility of a violation of American public policy if it was not
enforced. This case is significant because it exemplifies the pro-arbitration stance of
American courts, which prioritises the enforcement of arbitral awards over
considerations of comity. It showcases the court’s willingness to uphold arbitration
agreements and safeguard the integrity of the arbitral process, even in the face of
conflicting decisions from foreign courts (Sharif et al. 2021, p. 1768–1770).
Furthermore, one significant case that has had a profound impact on the
interpretation of public policy and the enforcement of arbitral awards is Parsons &
Whittemore Overseas Co., Inc. v. Société Générale de l’Industrie du Papier
(RAKTA)17
, which is frequently cited in all research regarding this topic. In this case,
the appellant, Parsons & Whittemore, was a United States national who sought to halt
the execution of an ICC arbitral award obtained by an Egyptian company, RAKTA.
The case was brought before the Second Circuit Court of Appeals, where Judge Smith
rendered the court’s decision. He underscored that a court should only refuse to
15
417 US 506 (1974).
16
659 F. Supp 426 (SDNY, 1987).
17
508 F.2d 969, 975 (2d Cir. 1974).
29
enforce a foreign arbitral award on public policy grounds if its execution would

violate the state’s most fundamental moral and equitable principles. Judge Smith
argued that adopting a broad interpretation of public policy would undermine the
primary goal of the New York Convention, which is to eradicate obstacles to the
enforcement of arbitral awards. According to the decision, the purpose of the
Convention would be best served by interpreting the public policy defence as a narrow
mechanism to safeguard the political interests of the state. Although the Parsons case
did not specify the precise moral and legal principles that would activate the public
policy defence, subsequent US courts have adopted its limited interpretation as the
prevalent standard. This approach has significantly influenced the practice of U.S.
courts when evaluating arguments based on public policy in relation to the
enforcement of foreign arbitral awards.
Subsequently, in the case of Court of International Navigation Ltd. v. Waterside
Ocean Navigation Co Inc.18
, the court recognised that one of the main objectives of
the New York Convention was to establish uniform criteria for enforcing international
arbitral awards. Consistent with the approach in Parsons & Whittemore, the court held
that the public policy defence should be invoked only when enforcing the arbitral
award would go against the fundamental moral and legal principles of the forum state.
In more recent cases, the US courts have consistently maintained this restrictive
approach to the public policy defense in international arbitration. They have
emphasised that any intervention by national courts on this ground should be limited,
even considered taboo (Sattar 2011, p. 8), and the public policy defence under the
New York Convention should be narrowly interpreted. This stance has remained
unchanged since the landmark Parsons & Whittemore case, as exemplified by the
decision in Telenor Mobile Communications v. Storm LLC.19
In the Telenor Mobile Communications case, the Southern District of New York
rejected the argument that public policy warranted the refusal to enforce a foreign
arbitral award that had been overturned by a colluding foreign court. The court
emphasised that for enforcement to be declined, the foreign decision would have to
directly contradict the foreign law in such a manner that compliance with one would
violate the other. The court placed significant emphasis on the public policy rationale
in favour of promoting arbitration and upholding arbitration awards.
18
737 F.2d 150 (Second Circuit, 1984).
19
524 F. Supp. 2d 332 (SDNY 2007).
30
It is clear that the United States has consistently demonstrated a pro-enforcement
stance when it comes to public policy considerations in the enforcement of foreign

arbitral awards. The American courts prioritise the finality and enforceability of
arbitral awards, recognising them as binding and deserving of deference. This pro
arbitration attitude aligns with the broader objective of fostering international trade
and commercial relationships. In cases where public policy concerns are raised, the
courts have interpreted the public policy defence in a narrow manner. They require a
direct and clear contradiction between the foreign arbitral award and the fundamental
moral and legal principles of the forum state in order to refuse enforcement, meaning
that mere inconsistencies or disagreements with foreign law or decisions of foreign
courts are not deemed sufficient to invoke the public policy defence. The unwavering
stance of the United States reinforces its commitment to prioritise the advancement
of international arbitration and the enhancement of global commercial relationships,
placing them above concerns of public policy when it comes to enforcing foreign
arbitral awards.
3.2.2. The United Kingdom
It appears that the United Kingdom’s case law regarding the enforcement of
foreign arbitral awards based on the New York Convention is not as extensive as that
of other nations, such as the United States or Germany. This is due, in part, to the
widespread preference for London as a venue for commercial arbitration disputes.
Due to London’s prominence as an arbitration centre, the enforcement of foreign
arbitral awards in the United Kingdom is frequently viewed as a “secondary” issue in
comparison to other aspects of international commercial arbitration and international
commercial law in general (Vargiu & Ahmed, p. 989).
This does not imply that the UK courts play no role in enforcing foreign arbitral
awards, that there is no legal framework in existence, or that there is no commitment
to upholding the New York Convention or supporting the enforcement of awards. On
the other hand, the United Kingdom has a well-established legal framework for the
recognition and enforcement of arbitral awards, based on the New York Convention
and the Arbitration Act of 1996. Moreover, the courts of the United Kingdom have
repeatedly demonstrated their pro-enforcement stance and respect for party
autonomy. They are generally inclined to enforce a properly executed and valid
foreign arbitral award, unless there are exceptional circumstances or grounds for
lawful refusal. This will be explored next.
31
In Section 103 of the Arbitration Act 1996, the grounds for refusing recognition
or enforcement are set, which include public policy20
. The Act does not provide a
specific definition of public policy, leaving it open to judicial interpretation. Thus, the
interpretation of public policy in relation to arbitral awards can vary among UK courts

and even between individual justices. Each case is evaluated on its own merits, taking
into consideration the particular circumstances and the prevalent legal and societal
norms. This methodology ensures that public policy can be interpreted in light of
contemporary societal standards and expectations (Daradkeh 2005, p. 197).
In the common law system of the United Kingdom, case law precedents serve as
binding authority and provide guidance for future cases. This implies that while there
is some room for flexibility, the fundamental objective of the prior application of
public policy within the realm of commercial arbitration will still be respected.
Several landmark cases that have shaped the law in this area illustrate the pro
arbitration stance of the United Kingdom, particularly with regard to public policy.
The landmark case Westacre Investments Inc. v. Jugoimport-SPDR Holding Co.
Ltd.21
exemplifies this pro-arbitration perspective. In this case, Westacre Investments
Inc. (“Westacre”) challenged the enforcement of an arbitral award issued by a
Serbian tribunal with its seat in Belgrade. Westacre argued that the award’s
enforcement would violate public policy. They claimed that the parties’ underlying
contract was compromised by corruption and bribery.
In analysing the issue, the Court of Appeals emphasised the significance of
promoting a pro-enforcement approach in arbitration matters. The court
acknowledged that public policy should not be invoked carelessly to undermine the
finality and effectiveness of arbitration. It held that a narrow and circumspect
approach should be taken when evaluating challenges based on public policy to
arbitral awards. It was also noted that the public policy ground should not be used to
re-examine the merits of the award or the tribunal’s legal interpretation. Instead, it is
essential that the court’s function be limited to ensuring that the tribunal had the
authority to issue the award and that the award is not fundamentally contrary to public
policy. In this case, the court determined that the public interest in upholding
international arbitration agreements outweighed the public goal of preventing
corruption. This case strongly demonstrated the UK’s courts reluctance to lightly
20
Arbitration Act 1996, Article 103(3), “Recognition or enforcement of the award may also be refused if the award is in
respect of a matter which is not capable of settlement by arbitration, or if it would be contrary to public policy to
recognise or enforce the award”.
21
[1998] 3 W.L.R. 770
32
invoke public policy grounds and their commitment to respecting the finality of
arbitral awards, displaying the courts’ pro-enforcement stance and their recognition
of the importance of upholding the integrity of the arbitral process, even when faced
with allegations of illegality.
Another significant case that exemplifies the UK’s pro-arbitration approach and

provides further clarification on the role of public policy in the enforcement of arbitral
awards is Dallah Real Estate and Tourism Holding Company v The Ministry of
Religious Affairs, Government of Pakistan22
. In this case, the Supreme Court of the
UK emphasised the limited scope of the public policy ground and reaffirmed its
authority to enforce arbitral awards. The court underlined that the public policy
ground should be narrowly construed and reserved for exceptional cases in which
enforcement of the award would contravene the most fundamental principles of
justice and morality. Simple legal mistakes or contract interpretation disputes do not
constitute violations of public policy. Moreover, the court stressed that litigants
should not use the public policy ground to seek a rehearing of their case or to
challenge the tribunal’s factual findings.
The narrowed interpretation of public policy of the UK courts continues to be
evident in recent cases, such as RBRG Trading (UK) Limited v Sinocore International
Co. Ltd.23
This case indicates the courts’ continued dedication to upholding the finality
and enforceability of arbitral awards while limiting public policy challenges. When
RBRG Trading attempted to enforce the award in the United Kingdom, Sinocore
objected on grounds of public policy. To specify, Sinocore argued that the award was
fraudulently obtained and that its enforcement would violate English public policy.
The case raised significant questions regarding the court’s role in reviewing the
substance of an arbitral award and the basis for refusing enforcement based on public
policy.
The Court of Appeal upheld the pro-arbitration stance and reaffirmed the court’s
limited involvement in arbitral awards. It once again emphasised that public policy
cannot be used as a broad basis for challenging the substance of an award or the
tribunal’s factual and legal findings. The court noted that establishing a violation of
public policy is difficult and requires a fundamental and egregious violation that
disturbs the court’s conscience. Sinocore failed to satisfy this stringent requirement.
Moreover, the court refused to review the merits of the arbitral award or reconsider
the tribunal’s findings. It argued that the focus of the court was on determining
22
[2011] 1 AC 763.
23
[2018] EWCA Civ 838.
33
whether there was sufficient evidence of fraud to justify refusing enforcement on
public policy grounds, not a retrial. As Sinocore did not provide sufficient evidence
of misconduct, the court ruled that the arbitral award is enforceable.
The RBRG Trading case reaffirms the UK courts’ pro-arbitration stance and their
commitment to upholding the finality and effectiveness of arbitral awards. It

underscores the courts’ reluctance to intervene on public policy grounds and their
predilection for upholding the arbitral process’s integrity. By limiting the extent of
challenges to public policy, the UK courts promote certainty and predictability in
international arbitration. It upholds the principle that challenges to the enforcement
of awards based on public policy grounds will succeed only in exceptional instances
involving a fundamental and flagrant violation of public policy (Emelonye and
Emelonye, 2021, p. 279).
3.2.3. India
In recent years, the definition and application of public policy in the recognition
and enforcement of arbitral awards in India have undergone significant revisions. The
Indian Arbitration Act of 1996 governs arbitration in the country and integrates the
New York Convention 1958.
Historically, there have been concerns regarding India’s excessive judicial
intervention in arbitration proceedings, which has negatively impacted the efficacy
and effectiveness of the arbitral process. The inclination of Indian courts to
extensively intervene in arbitral matters has resulted in delays, increased costs, and a
lack of finality in the resolution of disputes (Bettauer 2009, p. 381–388).
The decision in Renusagar v. General Electric24
by the Indian Supreme Court has
always been considered a fundamental reference point when discussing the issue of
Indian court intervention based on public policy grounds. In this case, the Court
acknowledged that its role is not to review the merits of an arbitral award or to act as
an appellate body, but rather to ensure the impartiality of the arbitration process and
the award’s conformity with the fundamental policy of Indian law. It made it clear
that the public policy defence should only be used in exceptional cases and should not
be used as a general premise for challenging the arbitral tribunal’s substantive
reasoning. This principle is essential for upholding the finality and integrity of the
arbitration process, as it prevents parties from requesting a new review of matters
already decided by the tribunal. This approach is comparable to that observed in
24
(1994) Supp. (1) SCC 644.
34
evolved arbitral jurisdictions, such as the United States and the United Kingdom,
where courts exercise restraint and defer to arbitrators’ decisions, providing
predictability and instilling confidence in international parties engaging in arbitration
in India, ensuring that their awards will be treated fairly and impartially.
However, in contrast to the earlier decision in the Renusagar case and departing
from commonly accepted principles of public policy, the Indian Supreme Court took

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