Desordre Public International under the New York Convention: Wither Truly International Public Policy

Much confusion has revolved around the nature of the publicpolicy defense under Article V(2)(b) of United Nations Conventionon the Recognition and Enforcement of Arbitral Awards (the NewYork Convention) to the point that the French term for publicpolicy, ordre public, ought to be changed to désordrepublic to reflect the general disorder in the discourse on thisparticular subject. This article takes an in-depth look at thepublic policy defense and challenges the notion that enforcementStates are obliged to consider supranational public policy whendeciding whether to recognize or enforce an international arbitralaward, except in only a few cases where certain regional obligationsare involved. Even then, this is not the type of truly internationalpublic policy that is advocated by numerous commentators. Nonetheless,States are free to rely on truly international public policywhen deciding on enforcement. Despite the perceived benefitsto relying on truly international public policy, there are significantreasons to refrain from pushing for such reliance. While relianceon truly international public policy may help mitigate someof the adverse side effects associated with globalization, itis important to ask what is the price we are willing to payto counter these side effects. The price should not be the emasculationof the New York Convention itself.