Introduction

To speak of public policy, those mandatory norms that comprise a State's “most basic notions of morality and justice,” as it relates solely to arbitral procedure may at first seem obscure and narrow, as the relationship between the two topics is not immediately self-evident. On reflection, however, the subject reveals its interest and importance, particularly once procedure is understood to encompass the entire process of arbitration, the underlying structure that causes arbitration to be viewed as part of a legal system. States are impelled, in order to protect their “fundamental norms of procedural fairness,” to exert control over the process of arbitration. At the very least, if the form and the underlying process by which an arbitral award was created do not meet all potentially applicable domestic procedural requirements, there will be confusion over where and to what extent the award will be enforceable, particularly if it involves transnational commerce.

The domestic mandatory norms applicable to procedure, including those specifically related to arbitral procedure, differ from State to State. The need to control and limit the arbitral process thus may conflict with certain needs of international commerce, such as the principle of party autonomy and the desire for certainty of enforcement of arbitral awards. In this way, as has been the case in other areas, public policy has been a limiting principle in efforts to unify and simplify the laws governing international commercial arbitration.