Extracts from ICC arbitral awards dealing with questions of public policy and mandatory rules, plus an accompanying commentary discussing arbitrators’ approaches to the application of public policy/mandatory rules in connection with the future enforcement of the award.
The article presents the results of an analysis of ICC arbitral awards in which tribunals considered public policy/mandatory rules in the state(s) where the enforcement of a future award was likely to be sought. The authors put forward three propositions: (i) tribunals do not spontaneously look into public policy issues/mandatory rules likely to affect the enforceability of their awards and parties rarely raise the question; (ii) arbitrators have an obligation to use their best efforts to render an enforceable award but are not required to guarantee that their award will be enforceable in every jurisdiction; and (iii) arbitrators will take into account public policy/mandatory rules that reflect international standards.
The authors discuss the extent to which the cases studied confirm these propositions. They find that references to public policy/mandatory rules in relation to the enforceability of a future award are rare and attribute this to the nature of international arbitration, which leads to decisions whose enforcement may be sought in more than one jurisdiction, making it impractical and inadvisable, if not impossible, to take account of public policy/mandatory rules in all of them. Also, arbitrators are not beholden to any given state and have no role to play in defending its public policy. Nonetheless, as the cases show, arbitrators may take account of public policy considerations at the place of possible enforcement of an award when these correspond to international public policy, or when they wish to take the precaution of demonstrating that their decision is not in breach of potentially applicable public policy/mandatory rules.
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Charles Nairac is a partner in the International Arbitration Group of White & Case, based in the firm’s Paris office. Focusing on the construction and energy industries, he has been involved in international commercial and investment arbitrations, under most of the major institutional rules as well as in ad hoc arbitrations, in English and in French. Previously, he worked as in-house legal adviser for a French bank in Singapore, providing legal support for the bank’s corporate banking and project finance activities. Mr Nairac graduated with an LL.B. from King’s College, London and a Maîtrise en Droit from Paris I (Panthéon-Sorbonne) University. He also holds a postgraduate degree in international law from Paris II (Panthéon-Assas) University. He currently lectures on international arbitration at the Universities of Paris II (Panthéon-Assas) and Nancy.
Elina Aleynikova is an associate in the International Arbitration Group of White & Case in Paris. Her practice includes international commercial and investment arbitration. Previously, Ms Aleynikova headed the legal department of a food production holding in South Russia and was adviser to a start-up international logistics project launched by a major Russian infrastructure corporation. Ms Aleynikova is a member of the Bars of New York and the Russian Federation. She holds a Russian law degree, J.D. and LL.M. degrees from the University of Pittsburgh and a postgraduate degree in business law from Cergy-Pontoise University, where she currently lectures on arbitration.
Manu Thadikkaran is an associate in the International Arbitration Group of White & Case in Paris, with a focus on commercial and investment arbitration. He previously acquired experience in the international arbitration group of a major Swiss law firm and litigation training from various law firms and courts in India. Mr Thadikkaran is a member of the Bar Council of India and he holds an LL.M. degree in International Dispute Settlement (MIDS) from the University of Geneva and the Graduate Institute of International and Development Studies, as well as a B.A., LL.B. (Hons.) degree from National Law University, Jodhpur.
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The full Bulletin contains extracts from awards and procedural orders rendered in ICC cases, commentaries on these case decisions, statistics, reports, and articles on ICC practices and procedures.
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