Recognition and reinforcement of arbitral award

Abstract

As one of the grounds that can be used by the party in arbitration to set aside and refuse enforcement of an arbitral award, public policy exception is often raised by the losing party. However, the pro-arbitration and pro-enforcement policy in most of the countries had made the interpretation of the term “public policy” much restricted to the “most basic notion of morality and justice” of the country. Furthermore, many narrow approaches had been adopted by the supervisory court as well as the enforcement court in order to uphold the arbitral award that had been issued by the arbitral tribunal. This makes the circumstances that will be considered as contrary to public policy becomes an interesting issue for this research. The objective of this study is to identify those circumstances that are contrary to public policy. The primary data for the analysis is the law cases from Malaysia, Hong Kong, United Kingdom and Australia. In this study, eleven law cases had been analysed to achieve the research objective. The method of analysis is the content analysis with the assist of Nvivo 11. In conclusion, five circumstances on substantive public policy had been identified which including award is not dealing the centre issue of the dispute; awards deals with illegal contract; enforcement of the award will defeat the objective of an Acts; award is not final and binding due to uncertainties and award is unable to be enforced whereas in term of procedural public policy, two circumstances which including right of the party to present his case has been breached and arbitrator fails to disclose his independence will be considered as contrary to public policy.