THE NOTION OF TRANSNATIONAL PUBLIC POLICY AND ITS IMPACT ON JURISDICTION, ARBITRABILITY AND ADMISSIBILITY
THE NOTION OF TRANSNATIONAL PUBLIC POLICY AND ITS IMPACT ON JURISDICTION, ARBITRABILITY AND ADMISSIBILITY

Summary/Abstract: Given the increasing influence of the concept of transnational public policy in both the commercial and the investment arbitration context and the critique attached to its application the author devotes this paper to an analysis of the scope and content of this concept and its impact on arbitral proceedings at the pre-merits stage. In particular, in a first part, the author gives guidelines on how to distinguish transnational public policy from other public policy concepts as applied in arbitral proceedings and gives guidance on how to determine its scope and content. Thereafter, the author analyzes in detail the impact of the notion transnational public policy on the arbitral tribunal’s affirmation or denial of jurisdiction, arbitrability and admissibility during arbitral proceedings. The author concludes that given the flexible content of transnational public policy, parties and arbitral tribunals should be cautious and carefully verify the objective existence and meaning of transnational public policy when considering applying it. Violations of substantive public policy are not necessarily postponed to the merits stage, but rather can have an impact on the arbitral tribunal’s assessment of jurisdiction, arbitrability and admissibility.

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