Environmental Engineering Reference
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not done by the average lawyer,
) but rather to discovery of the intent behind
the divine law and its appropriate application.
(
...
'
607 This means that it is difficult for
arbitrators to interpret the law because the wording is less important than the
intent. 608 Furthermore, the risk that utilization of public policy undermines arbitra-
tion awards has been around for a long time. 609
Cases in different countries provide additional examples of the problems of
public policy. In Pakistan, was a case where the Supreme Court stopped an
arbitration process in front of the ICC because it decided retroactively that the
issue could not have been subject to arbitration due to public policy. 610 The verdict
of the court is regarded to be arbitrary and a great step backwards within the
international arbitration community. 611
'
In India, the Supreme Court purposely
lowered the standard of public policy to
to be able to review an
arbitration award. 612 This means that an arbitral award can now be challenged on
the mere fact that it is
patently illegal
'
'
(
...
)in(
...
) contravention with the law and thus in conflict
'
613 The afore-mentioned examples show how public
policy can be raised to prevent the enforcement of the complete contract or
specifically on the arbitration clause. 614 Although public policy is not an issue
under the ICSID Convention, the GTFDI shows that it also can cause difficulties
concerning investments. The GTFDI mentions in section 2 No. 5 that all restrictions
because of ordre public also apply to investments.
The refusal of arbitration awards for public policy reasons is rare and thus often
unsuccessful. 615 A state cannot agree to apply a certain law to the contract and
afterwards claim that this law breaches its public policy. 616 If the part which
violates international public policy can be separated from the award, the rest should
be enforced according to Recommendation 1 No. 1(h) 2002 of the ILC Public
Policy Recommendations. Recommendation 4 2002 of the ILC Public Policy
Recommendations highlights that the refusal of enforcement should be ultima
ratio. In France, only the fundamental notions of the legal system are regarded as
public policy. 617 French courts tend to have a strict approach towards the applica-
tion of public policy, 618 resulting in public policy only being utilized in a narrow
with public policy in India.
'
607 Ayad ( 2009 ), 93 (102).
608 Ayad ( 2009 ), 93 (103).
609 Concerning Chinese courts, in: Fei ( 2010 ), 301 (302).
610
Sattar ( 2010 ), 51 (60).
611
Sattar ( 2010 ), 51 (60).
612
Also not excluding international awards, in: Sattar ( 2010 ), 51 (62) and (63).
613
Sattar ( 2010 ), 51 (62).
614
Buchanan ( 1988 ), 511 (515); In theory also the arbitral tribunal could raise public policy, in:
Buchanan ( 1988 ), 511 (515).
615 Saunders and Salomon ( 2007 ), 467 (471).
616 Schreuer ( 2009 ), 566 para 48.
617 Hanotiau and Caprasse ( 2008 ), 721 (730) and (736).
618 Hanotiau and Caprasse ( 2008 ), 721 (733-734).
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