Publication Type

Journal Article

Version

publishedVersion

Publication Date

6-2024

Abstract

When an award debtor challenges an award on public policy grounds, usually the principle of finality prevails, and courts will consider the award debtor bound by the decision of the tribunal. However, because public policy has implications beyond the disputing parties themselves, some courts consider themselves justified in reviewing the award. There is therefore a tension between finality versus the court’s duty to stand as the guardian of public policy. Whether a review of an award should be allowed under this ground, and if so, the extent of permissible review, differs across various jurisdictions. For instance, common law authorities have generally preferred a very strict approach where a court may review an award on public policy grounds only in extremely limited situations. This paper considers the prevailing approaches taken across different jurisdictions and ultimately proposes an alternative approach for the common law to strike a better balance between all competing interests.

Keywords

AJU, Betamax, contextual review, curial intervention, enforcement of award, maximal review, minimal review, public policy

Discipline

Dispute Resolution and Arbitration | Public Affairs, Public Policy and Public Administration

Research Areas

Dispute Resolution

Publication

Journal of International Arbitration

Volume

41

Issue

3

First Page

271

Last Page

316

ISSN

0255-8106

Publisher

Kluwer Law International

Copyright Owner and License

Publisher

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