International arbitration, public policy considerations, and conflicts of law: the perspectives of reviewing and enforcing courts

摘要

This article considers the different approaches to public policy by national courts to conflicts of law in international arbitration, the possible senses of the term 'public policy', which or whose public policy is to be taken into account, and barriers to certainty and uniformity despite international rule-systems or substantially harmonized national legal systems as a result of the adoption of the Model Law or which are largely based on it. s used to exemplify the problems and as pointers to a way forward. It considers the nature of the discretion to refuse to enforce, and how the interests and policies of the seat of the arbitration and those of enforcing courts should be balanced in the light of the structure of the New York Convention and the choice a losing party has between active remedies in the court of the seat and passive remedies by way of a defence to enforcement proceedings. The issues are illustrated by contrasting the circumstances of the decision of the Supreme Court of the United Kingdom in Dallah Real Estate v Government of Pakistan and those in the more recent litigation in Singapore and Hong Kong between PT First Media and Astro Nusantara.