Part XI Public Policy and Abuse of Process, 32 Public Policy Rules in English Arbitration Law
Stavros L Brekoulakis
From: Defining Issues in International Arbitration: Celebrating 100 Years of the Chartered Institute of Arbitrators
Edited By: Julio César Betancourt
- Jurisdiction — Arbitral tribunals — Arbitrators
This chapter argues that the doctrine of public policy currently adopted by legal discourse in arbitration is conceptually and methodologically confusing, and outdated. It is conceptually confusing because there is usually no explanation about how the content of public policy is ascertained or whether the doctrine functions as a legal principle or a set of legal rules. The doctrine of public policy, as a structured set of legal rules, can be better conceived of as a doctrine of national law. The rules of public policy can also be ascertained from a careful analysis of the historical context and jurisprudential development of the doctrine. The chapter first looks into the concept and function of public policy in English law and jurisprudence. It then focuses on the role of public policy in English private international law, before finally ascertaining the rules of public policy in English arbitration law.