Some reflections regarding International Public policy in international arbitration, its functionality and its interdependence with Public International Law

Abstract

International arbitration is not domestic nor international in nature. In fact, the law appli­cable to that kind of proceedings can be considered a byproduct of the will of private parties. However, this wide attribution recognized to individuals have some limits. In this regard, it must be born in mind that arbitral awards represent a sort of private justice and, therefore, States requested to execute those kind of decisions can refuse their enforcement within their jurisdictions. One scenario that entails the non-enforcement of and arbitral award happens when the decision collides with the public policy (ordre public) of the State where is supposed to be implemented. This is widely recognized as a fundamental rule in international arbitration, nevertheless, a problem arises. The notion of public policy is contingent in nature and, because of that, it requires to be applied in very specific circumstances. That is why some academics and state tribunals have formulated the notion of international public policy as a term directed to narrow the content of that institution, but using to that end purely domestic legal content. In this sense, the term international public policy emerged as a merely sub-section of domestic public policy divested of any international meaning. In that context: ¿should international arbitration institutions (as the excep­tion of ordre public), be understood by purely domestic elements? ¿Where would be the international aspect of international commercial contract or investment if the exception of public policy is analyzed by purely domestic constructions? Those doubts have pushed in some systems, the formulation of in­ternational public policy in truly international terms. This is somehow welcomed, however, this usage creates additional doubts: ¿What does a public policy of the international realm entail? ¿What is its content and, can that be used in practical ways to exclude the enforcement of and international arbitral award? ¿What is the role of Public International Law in all of this? ¿If truly international public policy is used by domestic tribunals, would that be a point of connection between Public International Law and Private International Law? These and other questions will be entertained in this paper.