Public Policy as A Ground for Refusing Recognition and Enforcement of Foreign Arbitral Awards: New York Convention, UNCITRAL Model Law and Afghanistan Arbitration Law Perspectives

Abstract

This article aims to examine the grounds for refusing the recognition and enforcement of foreign arbitral awards based on public policy considerations. It analyzes this issue from the perspectives of three different sources of law: the New York Convention, the UNCITRAL Model Law, and the Afghanistan Commercial Arbitration Law. It discusses the limited scope of the public policy exception under the Convention and the level of discretion given to national courts in applying this ground for refusal. Next, the article explores the UNCITRAL Model Law, which serves as a basis for legislation in many jurisdictions and is often incorporated into domestic arbitration laws. It examines the approach taken by the Model Law towards the public policy exception and compares it to the New York Convention. Finally, the article looks at the perspective of Afghanistan's Commercial Arbitration Law. It analyzes the specific provisions in this law that deal with the recognition and enforcement of foreign arbitral awards based on public policy grounds. Through this analysis, the article aims to provide a comprehensive understanding of how public policy considerations can impact the recognition and enforcement of foreign arbitral awards under different legal frameworks.

The Recognition and Enforcement of Foreign Arbitral Awards: The New York Convention and the Afghan Law Perspectives

“…The question whether an award is domestic or foreign is an issue of exceptional importance because the proceedings of recognition and enforcement of domestic and foreign awards are different in many jurisdictions (Basirat & Haqmal (2023). Due to such diversity of approaches upon enforcement of arbitral awards including ground for the non-enforceability of the awards in national legal systems of the countries, it sometimes occurs that an award might be refused in one state while it may still be granted enforcement in another country (Gaillard et al, 2017) Despite two criteria mentioned in NYC regarding the recognition and enforcement proceeding of an award upon determining whether an award is foreign, however the criteria for considering an award as domestic or foreign is not always obviously defined which mostly matters in comparative national legislations.…”