Transnational public policy in international arbitration

Abstract

Arbitration tribunals rely on public policy principles to exclude or determine the applicable law. At times, the notion of public policy will contain fundamental yardsticks recognised by the world community at large. In such cases public policy may be called transnational or truly international. The thesis expounds the notion and content of transnational public policy as applied by international tribunals. This objective is met by exploring the method, functions and purpose of transnational public policy in international arbitration. The opening chapter sheds light on the origins and concept of public policy and the different levels it has been applied by international tribunals and national courts. It suggests a criteria for the distinction between domestic, domestic-international, regional and transnational public policy. The thesis then gives an in depth analysis of the origins and notion of transnational public policy. It suggests that international tribunals have relied on transnational public policy in their awards and proposes a method to determine its content and sources. Such method is then applied to deduct the content of transnational public policy from decided arbitration awards. The thesis shows that transnational public policy can be relevant at three different stages in international arbitration. At the outset of the proceeding, where the arbitrators determine their jurisdiction; during the arbitration, where it controls the procedure applicable in the arbitration; or at the stage of drafting the final award, where it determines fundamental substantive rules relied upon by the tribunal.