A Comparison Of The Use Of The Public Policy Defence By Different Countries To Resist The Enforcement Of International Arbitral Awards – A Rising Star Or Setting Sun?

A Comparison Of The Use Of The Public Policy Defence By Different Countries To Resist The Enforcement Of International Arbitral Awards – A Rising Star Or Setting Sun?

Moreover, in relation to the review of the arbitrator’s decision, the French court in the Thalès case made it clear that it cannot, in the absence of fraud carry out an examination of the merits of the case as it would interfere with the finality of the arbitrator’s decision. This position was confirmed recently by the Paris Court of Appeals in the SNF SAS v. Cytec Industries case , where the court held as follows

“Concerning the violation of international public policy, only the recognition or the enforcement of the arbitral award has to be examined by the judge [hearing the application to set the award aside] with respect to its compatibility with public policy, with control being limited to the flagrant, effective and concrete character of the alleged violation”.

The court made it clear that, in the absence of a flagrant breach of public policy, there was no reason to substitute the court’s view for that of the arbitrators.

The French decisions paint a pleasant picture where interferences by national courts with arbitral awards under the guise of public policy are considered to be forbidden and unless strictly necessary, national courts are reluctant to interfere with a valid arbitral award on grounds of public policy.

Likewise, the Italian Court of Appeal in Florence enforced an award made in the United States under the rules of the American Arbitration Association. This was notwithstanding a challenge to enforcement on the ground that the arbitrators’ reasons for decision were not stated in the award. The Italian court enforced the award regardless of the fact that the statement of reasons in an adjudicator’s decision was a principle in the Italian constitution. The Italian court declared that:

“The fact that reasoning constitutes a principle of the Italian Constitution is not important because what is fundamental in Italian law of procedure may not be considered as such by foreign legislative and judicial authorities” .

Funke Adekoya

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