in Yun Zhao (ed), International Governance and the Rule of Law in China under the Belt and Road Initiative (Cambridge University Press, September 2018), pp. 277-294
Introduction: The accomplishments of a broadly homogenised global arbitration system have been made possible by international embracement of three UN-initiated arbitration devices: the Convention on the Recognition and Enforcement of Foreign Aribitral Awards (the New York Convention here-after), UNICITRAL Model Law on International Commercial Arbitration (Model Law hereafter) and UNCITRAL Arbitration Rules (UNCITRAL Rules hereafter). However, a truly harmonised system of international commercial arbitration has thus been foiled by the 'public policy' exception in the enforcement of arbitral awards under the New York Convention, Article V2 (b) which stipulates that '[r]ecognition 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) [t]he recognition or enforcement of the award would be contrary to the public policy of that country. Indeed, it was Burrough J of the English court of the Exchequer who famously proclaimed in 1824 that public policy 'is a very unruly horse, and once you get astride it you never know where it will carry you. The 'unruly horse' metaphor aptly captures the indeterminacy of the public policy exception within international commercial arbitration, a substantial and recurring obstacle to both the finality and enforceability of arbitral agreements and awards. The existence of differing conceptions of public policy amongst legal systems, traditions and jurisdictions generates substantial uncertainty as to the conditions of international arbitral award enforcement in both theory and practice. True harmonisation of the nebulous public policy exception is thus necessary to fashion a cogent, coherent arbitral enforcement system that is applicable across the globe.
Within Asia, the aim of China's proposed Belt and Road Initiative (BRI) is to bolster regional connectivity, promote cross-border investment and strengthen economic coordination across the Eurasian nations located along the historic Silk Road. In light of the large volume of cross-border contractual disputes expected to arise as a result of the BRI, the importance of arbitration as the preferred means of commercial dispute resolution is expected to grow, particularly given its ability to mitigate conflicts between different legal systems. This chapter contends that the BRI provides an ideal context for contemplating the possibility of the regional or 'geo-legal' harmonisation of the public policy concept in the cross-border enforcement of arbitral awards within Asia. Whilst the abundance of different legal cultures in Asia presents formidable challenges to harmonisation, bringing consistency to the public policy exception is likely to yield substantive benefits in the arena of commercial certainty and, as a natural corollary, stimuli for boosting investment amongst the Belt and Road nations. Such developments will pave the way towards the ultimate goal of 'true harmonisation' of the international commercial arbitration system...
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