The Legal Concept of International Public Order in the Context of International Commercial Arbitration An Analytical Study

Abstract

The idea of studying public order in general, and international public policy in particular, holds great significance due to its profound impact on actions for the annulment or non-recognition of foreign arbitral awards. Such actions are often based on the claim that the arbitral award conflicts with the framework of public policy, a concept that serves as a safeguard and faithful protector of the fundamental interests of any human society.

Therefore, the researcher was highly keen to thoroughly explore this legal concept in depth and detail through this study, in which we clearly define the meaning of international public policy in the context of recognizing or annulling foreign arbitral awards on the grounds of violating public policy.

Given the practical and legal complexities this concept raises, the study adopted a rigorous and scientific approach that enabled us to provide sufficient and comprehensive answers to the questions and ambiguities surrounding this legal concept, and to examine the position of national and international legislations regarding the intended meaning of public policy.

The Libyan legislator, through the new Arbitration Law, recognized the idea of international public policy, in alignment with the New York Convention and the Arab Conventions of Riyadh and Amman, unlike the Washington Convention which does not clearly or explicitly mention the notion of public policy.

This study was supported by our modest academic efforts, based on the legal provisions and judicial rulings within the studied legislations. We drew upon a significant number of judicial decisions, both theoretical and practical, to capture the legal concept of international public policy, despite the difficulty of the task due to the vague and flexible nature of the concept.

We found no precise legal definition that explains the essence of public policy in the laws and legislations under study, all of which left the task of defining its nature and scope to legal jurisprudence and national and international courts.

Despite this challenge, the study provides a comprehensive overview of all legal and judicial dimensions governing the legal concept of international public policy, as explained through three main sections.

The first section explores the essence, purpose, and philosophy of international public policy, in comparison to the traditional or domestic public order. The second section is dedicated to the positions of national and international legislations under study regarding the concept of international public policy. The third section examines a collection of judicial rulings as practical applications of the concept, with commentary whenever appropriate.