Lloyd's Maritime and Commercial Law Quarterly
PUBLIC POLICY AND THE ENFORCEMENT OF INTERNATIONAL ARBITRATION AWARDS: CONTROLLING THE UNRULY HORSE
Jonathan Harris * and Frank Meisel †
Arbitration, or at any rate international commercial arbitration, may have powerful claims to be delocalized, to be entitled to be regarded as unconnected with any particular system of law. However, the English courts have not readily subscribed to that view. Moreover, when it comes to enforcement of an award, the courts have, residually, been prepared to invoke English public policy to deny a party enforcement in the UK. The preparedness of the courts to do this, even in respect of an arbitration not governed procedurally or substantively by English law or where the underlying contract is unconnected with this country, may be problematic: it may raise issues of comity which pull in opposite directions, it may involve the court in reopening issues already justiciated and, most significantly, it may compromise the public policy interest in the early finality of arbitral awards which has informed arbitration law reform over the last 20 years. Two recent cases have refocused attention on these matters; this article is concerned with an examination of them.
Public policy can be both a servant and a tyrant to the conflict of laws. If operated within a coherent, manageable framework, it can avoid unsatisfactory outcomes which might otherwise ensue from the application of choice of law rules, or properly prevent the enforcement of foreign judgments or international arbitration awards. If not, it can undermine the integrity of those rules, import an unwelcome degree of uncertainty and unduly offend comity. The consensual nature of arbitration intensifies these anxieties, especially where enforcement in an English court is sought, since the respect to be accorded to the private arrangement of the parties has to be weighed against the concern of an English court not to undermine its own integrity.1 Such was the balancing act which confronted the Court of Appeal in Soleimany v. Soleimany.2
Between 1980 and 1983 Sion Soleimany arranged, with the assistance of his son Abner, the export of carpets from Iran, which were sold in England and elsewhere outside Iran. Disputes arose as to whether Abner received what he alleged was due to him from the proceeds of sale of certain carpets, of which he claimed to have organized the export. He
* Lecturer in Law, University of Birmingham.
† Senior Lecturer in Law, University of Birmingham. We would like to acknowledge with gratitude the assistance of Adrian Briggs.
1. “It is essential to an understanding of the English law of arbitration to recognise that throughout its history the law has approached the relationships between the parties and the arbitrator and between the parties and each other, unequivocally in terms of private law… Once the arbitration agreement has been construed the courts … will endeavour to enforce whatever positive rights it may be held to create”: Mustill & Boyd, Commercial Arbitration, 2nd edn (London 1989), 4.
2. Soleimany v. Soleimany (19 February 1998) [1998] The Times, 3 March.
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