Environmental Engineering Reference
In-Depth Information
local standards, which limit the principle of freedom to contract.
596
On the other
hand, international public policy includes more flexible standards and rules of the
state, which are applied in an international context.
597
Art. 1502(5) of the Code
Civil in France also stipulates that an appeal against a decision which grants
recognition and enforcement is only possible if either one is contrary to interna-
tional public policy. Even English courts also accepted that foreign arbitral awards
might violate British public policy, but not international public policy.
598
Other authors claim that there is a transnational public policy superseding
domestic public policy to serve the higher interests of the world community.
599
The main difference to international public policy lies in the fact that transnational
public policy is that international public policy is subject to the choice of law
process.
600
International and transnational public policy have the trans-boundary
application in common, which illustrates that they also overlap to a certain extent.
601
Consequently, it is difficult to distinct between the different forms and within the
next few years a distinction might be irrelevant, due to an even closer connection
between national and international law.
602
In practice this does not matter because
courts will only apply public policy issues if they are part of the international public
policy of the state, even though they may also be transnational public policy.
603
2.7.2 Problems Related to Public Policy
The interpretation of public policy is particularly difficult in Islamic countries
because there is no unified approach.
604
The unpredictable issue of how the Shari
a
'
might influence public policy underlines this.
605
Nevertheless, the Shari
a is inde-
pendent of public policy, but can support the later.
606
Interpretation of the Shari
'
'
ais
596
Buchanan (
1988
), 511 (513).
597
Buchanan (
1988
), 511 (514); Example of international public policy in Article 2(4) UN
Convention (e.g. prohibition of slavery, piracy, drug trade, terrorism and genocide and the
protection of basic human rights), in: Schreuer (
2009
), 566 para 49.
598
Saunders and Salomon (
2007
), 467 (472).
599
Hanotiau and Caprasse (
2008
), 721 (731-732); Buchanan (
1988
), 511 (514) and (529-531).
600
Ma (
2005
), 87; cf Buchanan (
1988
), 511 (514) and (529).
601
Ma (
2005
), 88; Transnational public policy is independent of the chosen law, whereas inter-
national public policy adjust according to the chosen law, in: Ma (
2005
), 89; Buchanan (
1988
),
511 (514).
602
Ma (
2005
), 91.
603
Hanotiau and Caprasse (
2008
), 721 (732); cf ILA recommendations on public policy as a bar to
enforcement of arbitral awards, in: Hanotiau and Caprasse (
2008
), 721 (732); Cases applying
transnational public policy are rare, in: Buchanan (
1988
), 511 (530).
604
Ayad (
2009
), 93 (96) and (112).
605
Ayad (
2009
), 93 (100).
606
Ayad (
2009
), 93 (100).
