“Public Order” as Grounds for Refusal in the Recognition and Enforcement of a Decision in International Commercial Arbitration: Ukrainian Realities and International Experience
Summary: – 1. Introduction. – 2. Classification of Grounds for Refusal to Recognise and Enforce the Award of International Commercial Arbitration. – 3 The Definition of ‘Public Order’ in the Doctrine of International Commercial Arbitration. – 4. Types of Public Order and the Practice of Application. – 5. Conclusions.
Abstract
Background: The question of recognition and enforcement of international commercial arbitration (ICA) decisions, as a prototype of a foreign court decision, finds radically opposite answers in different legal systems and in the doctrine of the ICA. Thus, in the Regulation of the Council (EU) 44/2001 of 22 December 2000 on the jurisdiction, recognition, and enforcement of judgments in civil and commercial matters, formerly the Brussels Convention of 1968 and the Lugano Convention of 1988, the notion of ‘arbitration’ was excluded from the sphere of execution and recognition of foreign court decisions.
Methods: Nevertheless, the procedure for recognising and enforcing an ICA award has a unified approach in many countries around the world. Thus, national courts, when deciding on the recognition and enforcement of an ICA award, are increasingly faced with such problematic issues as the grounds for refusing to recognise and enforce such an award. This article reveals that these grounds for refusing to recognise and enforce the award of the ICA are a violation of public order of the country where the arbitral award is subject to recognition and enforcement. Particular attention is paid to the distinction between ‘substantive’ and ‘procedural’ public order and the practical approaches of national courts in some countries to this issue.
Results and Conclusions: The authors state that the way to overcome this inconsistency is still a unified approach to understanding ‘public order’ in all member states of the New York Convention of 1958 and clearer international regulation of this issue.
About Authors
Malinovska Iryna
Cand. of Science of Law (Equiv. Ph.D.), Assist. Prof. at Civil Law Department, Yaroslav Mudryi National Law University, Kharkiv, Ukraine.
i.m.malinovska@nlu.edu.ua
https://orcid.org/0000-0001-5945-2042
Corresponding author, responsible for conceptualization and methodology.
Competing interests: Any competing interests were announced.
Disclaimer: The author declares that her opinion and views expressed in this manuscript are free of any impact of any organizations.
Yarkina Natalya
Cand. of Science of Law (Equiv. Ph.D.), Associate Professor of the Сivil Law Department No 1, Yaroslav Mudryi National Law University, Kharkiv, Ukraine.
n.ye.yarkina@nlu.edu.ua
https://orcid.org/0000-0001-9026-9385
Co-author, responsible for data collection.
Competing interests: Any competing interests were announced.
Disclaimer: The author declares that her opinion and views expressed in this manuscript are free of any impact of any organizations.
Filiuk Oleksandra
Cand. of Science of Law (Equiv. Ph.D.), Associate Professor at the Department of Law, Lutsk National Technical University, Lutsk, Ukraine. Filiuk.alexandra@ltnu.ua
https://orcid.org/0000-0003-1717-3146
Co-author, responsible for data collection.
Competing interests: Any competing interests were announced.
Disclaimer: The author declares that her opinion and views expressed in this manuscript are free of any impact of any organizations.
The content of this article was translated with the participation of third parties under the authors’ responsibility.
Copyright: © 2022 I Malinovska, N Yarkina, O Filiuk. This is an open access article distributed under the terms of the Creative Commons Attribution License, (CC BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
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I Malinovska, N Yarkina, O Filiuk ‘“Public Order” as Grounds for Refusal in the Recognition and Enforcement of a Decision in International Commercial Arbitration: Ukrainian Realities and International Experience’ 2022 1(13) Access to Justice in Eastern Europe 154-164. DOI: https:// doi.org/10.33327/AJEE-18-5.1-n000096
