"Article V(2)(b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards has been the subject matter of several academic discussions. By allowing courts to deny recognition and enforcement of an award on grounds of public policy, this rule has been reviewed by in many jurisdictions, with results that are not always satisfactory. Dr. Anton G. Maurer has made a serious and comprehensive study of the history, interpretation and application of in various relevant jurisdictions, and it contains a detailed description of the developments in Brazil, Russia, India, and China. The result of his work will surely become a valuable tool for both academics and practicing lawyers."
- Eduardo Zuleta, Co-Director of the Dispute Resolution and Investment Protection Department of Gómez-Pinzón Zuleta in Bogota, Columbia
"Dr. Maurer has written a tour de force that will be a valuable work of reference for all international arbitration practitioners with its width and depth of coverage, and its detailed analysis of critical court decisions from all the major arbitration centres. This is a true work of scholarship on one of the most controversial subjects in international arbitration, which also provides in its footnotes a valuable source of other primary materials on the subject."
- Michael Hwang S.C., Michael Hwang Chambers
"This book offers a very valuable resource in understanding one of the most controversial exceptions to enforcement under the New York Convention. It provides an in-depth analysis of the drafting history of the Convention and a very useful survey of how important arbitral jurisdictions have interpreted the public policy principle."
- Barry Leon, Partner and Head of the International Arbitration Group at Perley-Robertson, Hill & McDougall LLP/s.r.l.
"A thorough and thoughtful examination of the public policy exception with a global panorama of jurisprudence; particularly striking for the reader is the analysis of the history of how the New York Convention came into being and is therefore of enormous practical assistance to the present-day practitioner. A book for the desk top."
- Klaus Reichert, S.C., Brick Court Chambers, London
"Exactly how the public policy exception shall be interpreted and when it may be applied is one of international arbitration's most interesting debates. An in-depth review of the history behind Article V (2) B of the New York Convention together with a comprehensive survey of national practice make Maurer's new book an important contribution to the literature on this interesting topic. Thoroughly researched and well written, The Public Policy Exception under the New York Convention: History, Interpretation and Application will become a reference work for practitioners and scholars at the cutting edge of modern arbitration. Congratulations to Anton G. Maurer on his outstanding achievement!" - Ariel (Lu) Ye, Partner, King & Wood
"By exploring the difficult and important subject of the public policy exception under the New York Convention, Mr. Anton G. Maurer has made a signal contribution to the field of international arbitration. The book offers a thorough review of the history of the public policy exception and an incisive analysis of the differing views as its proper interpretation. It provides a most useful and extensive comparative law analysis of the application of the exception in twenty of the leading jurisdictions as well as the critical BRIC countries and offers comprehensive references to other works on the subject. Combining both the theoretical and the practical , this impressive work belongs on the shelf of every international arbitration practitioner as a seminal guide through the thicket this issue has long presented."
-Edna Sussman, Distinguished ADR Practitioner in Residence, Fordham University School of Law, New York, New York
"The Public Policy Exception under the New York Convention: History, Interpretation and Application, by Mr. Anton G. Maurer, is a valuable addition to the development of international arbitration especially with regard to the interpretation of the New York Convention. The book deals incisively with the drafting history and interpretation of Article V(2)(b). The comparative study of the public policy exception in various countries is extremely useful to arbitration practitioners as they would be able to have an immediate insight as to the manner in which the courts of those jurisdictions are interpreting the public policy exceptions. The decisions of the courts of the various jurisdictions are discussed critically. This is supplemented by copious footnotes and references to academic writings. The book deals in detail, with the approach of the courts of BRIC countries namely Brazil, Russia, India and China, where the problems of enforcement of arbitral awards are legion. This is a book that a practitioner of international arbitration should have in his library."
- Cecil Abraham, Senior Partner, Dispute Resolution Practice Group, Zul Rafique & Partners
"The public policy exception under the New York Convention of 1958 is considered to be one of the most controversial exceptions to the enforcement of arbitral awards. Mr. Maurer's important book centers around the question how the exception should be interpreted. In analyzing this question, Maurer first gives us a fascinating tour of the drafting history of Article V (2) (B), starting with the preliminary ICC draft convention up to the final text adopted on 10 June 1958. Maurer highlights that despite all previous heated debates representatives of both civil and common law countries ultimately unanimously approved the final text of the public policy exception as we know it. On the other hand, Maurer also notes that the term "public policy" as such was never discussed during the conference. Hence the need for interpretation rules which Maurer convincingly analyses in chapter 4 of his book. Chapter 5 gives the reader a most valuable overview as to how the public policy exception is interpreted in the court practice of various economically important jurisdictions from all over the world. For good reason, a special chapter is dedicated to the most problematic jurisdictions, i.e. Brazil, Russia, India and China. In his conclusions, Maurer stresses the need for uniformity in the practical enforcement of foreign arbitral awards and takes the view that the incorrect application of the New York Convention by a state, including its courts, engages in principle the international responsibility of such state. In my opinion, Mr. Maurer's book is an important addition to the commentaries on the New York Convention. Its particular value consists in its systematic approach regarding the interpretation of the public policy exception. There is good reason to hope that the book will contribute to the development of a more uniform standard for the application of the exception."
- Dr. Klaus Sachs, Partner with CMS Hasche Sigle, Munich, Germany
"Dr. Anton G. Maurer has rendered signal service by high-lighting one of the impediments to enforcement of foreign awards under the New York Convention, the exception of "public policy", aptly described as "an unruly horse". His painstaking and thorough study is a superb exercise in public international law, private international law, and, more importantly, in comparative law. He has studied and analyzed the legislation and the judgments of the higher courts in not less than 24 important countries, including India and China. He has done so accurately and perspicaciously. His grasp and understanding of the highly complex and seemingly contradictory judgments of the Supreme Court of India and the various High Courts in India is particularly impressive. He has succeeded in demonstrating that both the Legislature and the Judiciary in India need to keep in mind, more than they have done, India's treaty obligations under the New York Convention, and to reformulate principles in regard to treatment of foreign arbitrations, international commercial arbitrations, foreign law, and the recognition and enforcement of foreign arbitral awards. Dr. Maurer's book must get first-class marks for its lucidity, clarity and readability."
- Jai Mangharam Mukhi, Senior Advocate of the Supreme Court of India
"Anton G. Maurer has accomplished an extraordinary and impressive work by presenting a very detailed and profound analysis of the history, interpretation and application of the public policy exception under the New York Convention. His careful examination of the drafting history provides an invaluable source for the interpretation of Article V (2) (B), even accepting that there is no global standard and that the term 'public policy' may be, and often is, interpreted and applied differently in each Convention state. As the consideration of public policy can never be exhaustively defined, Maurer's publication citing and discussing an abundant number of cases in different jurisdictions will be an invaluable reference publication to be consulted by international arbitration practitioners. Maurer explains how the public policy exception is applied in a variety of countries which are either economically important or apply the public policy exception unexpectedly broad. In addition, he devotes a separate chapter to a detailed presentation of the application of the public policy exception in Brazil, Russia, India and China.
Looking at statistics there are worldwide a great number of enforcement decisions and although there is but a small number of cases where the enforcement based on public policy exception is denied, Maurer's publication surely will become a well-thumbed handbook for anyone dealing with the enforcement of arbitral awards under the New York Convention."
- Dr. Georg von Segesser, Partner/ Rechtsanwalt/ FCIArb., Schellenberg Wittmer
"Dr. Maurer's treatise is a tour de force, providing a comprehensive analysis of the New York Convention's "Public Policy Exception," including its travaux preparatoire and application by courts worldwide. It is an indispensible resource for any law firm that seeks to enforce or to challenge the enforcement of an international arbitration award in domestic courts."
- Kenneth B. Reisenfeld, Partner, Patton Boggs LLP, Chair, International Arbitration Practice
"The Public Policy Exception under the New York Convention: History, Interpretation and Application is a very well written book and a result of extensive research. It is a must for those professionals who deal with private international law and international arbitration."
- Fernando Eduardo Serec, Head Partner in the Litigation and Arbitration practice groups of Tozzini Freire Advogados, Sao Paulo
"In practice, when an award is refused enforcement under the New York Convention, it is done on the basis of the public policy exception. The major interest of Mr. Maurer’s book is that it combines an in-depth analysis of the history of Article V(2)(b) of the New York Convention and a very detailed study of the way it is applied in the major jurisdictions. It is an indispensable complement to all the studies which were published these last years on public policy in international arbitration."
-Bernard Hanotiau, Hanotiau & van den Berg; Professor of Law - Universities of Louvain and Namur (Belgium)
"This book is a comprehensive treatment of article V(2)(b) of the New York Convention. The public policy exception to recognition and enforcement of an arbitral award is viewed by many as the most controversial aspect of that instrument. Described variously as an 'unruly horse,' an 'untrustworthy guide' and 'an uncertain one,' the public policy exception has led to unpredictability and inconsistency in the application of the convention, a result at odds with the convention’s intended purpose of providing ease, expedition and uniformity in support of arbitration as the mechanism for resolution of cross-border disputes. The public policy exception is accordingly a subject on which a work of this broad scope is welcome.
Maurer drawns on an extensive background in international arbitration over several decades and professional involvement in disputes in over 80 jurisdictions to present a comprehensive global perspective on this critical exception to the convention.
The book is structured in five main chapters taking the reader from a background on the New York Convention to specific applications in different countries.
Following chapter one's introduction, chapter two provides an overview of how conventions and treaties are to be interpreted under international law. The chapter reviews the relevant provisions of the Vienna Convention starting with the principle of pacta sunt servanda (agreements are to be kept)and discusses the accepted use of the travaux préparatoires (working papers) to aid in the interpretation of the text.
In chapter three, the author provides a detailed review of the negotiation of the convention and its public policy exception and discusses the various proposals made, accepted and rejected. Those who have never studied the travaux will be interested to read about the history of the introduction of the word 'only' in article V to limit the scope of court review; the decision to use the word 'may' rather than 'shall' to describe the authority given to the courts in exercising their right of review to afford courts discretion to enforce an award even if one of the provisions of article V is met; and the rejection of the proposal that enforcement could be denied if the award involved a violation of any law of the state where enforcement is sought, thus limiting the scope of permissible review.
Chapter four's analysis focuses on the import of the phrases used in the convention. Drawing upon the travaux, it dissects the meaning of each phrase to support the conclusion that the drafters intended that the public policy exception be narrowly construed. A discussion of the relationship between article V(1) and V(2)(b) and the circumstances in which each may be applicable follows.
In a tour de force, chapter five provides a comparative law analysis of the application of the convention in 20 jurisdictions. For each country, the discussion starts with the date of its accession to the convention and the local implementation mechanism, whether self-executing or by law. The author goes on to review local court decisions that discuss the public policy exception or refuse enforcement because of a violation of public policy.
The chapter then explores whether the country applies its views of international public policy or its own domestic public policy in applying the exception. Exhaustive footnotes to scholarly writings on the approaches of the various jurisdictions are supplied. It also provides quotations from various courts that have tried to articulate the narrow construction to be given to the public policy exception.
Importantly, the book devotes a significant portion of the text to the BRIC countries; Brazil, Russia, India and China. Chapter six explores each of these countries in depth. As global commerce continues to increase in these important growth markets, attention must be devoted to whether there are effective and reliable dispute resolution mechanisms. The author concludes, based on his analysis and review of the case law and the scholarly writings, that only Brazil construes the public policy exception as narrowly as most other member states. But the author suggests that there is hope that as the law on arbitration in these countries develops, their approach will more consistently be in line with that of other nations.
In the final chapter, the author concludes that the New York Convention has accomplished one of its key objectives: an analysis of 850 arbitration enforcement decisions under the convention shows that enforcement was refused in only 70 cases. However, the author also notes that the public policy exception has been the most misused ground for non-enforcement.
The work ends with the author's assessment of whether a state breaches public international law if its courts refuse recognition and enforcement of an award in violation of the New York Convention and the potential for use of bilateral investment treaties, where the investment requirement can be satisfied, to obtain redress.
The book's thorough review of the development of the public policy exception and its interpretation and application by courts in multiple jurisdictions is a significant contribution to the international arbitration community. Those seeking quick access to insights on a jurisdiction of interest will find this book an invaluable resource. Those interested in a comprehensive study of the public policy exception will find this book a treasure trove.
-Edna Sussman, Independent Arbitrator and Mediator in New York
