Abstract
Globalization of investment, commerce, transnational disputes and specifically, the concern of harmonizing international arbitration has appeared to raise transnational public policy, a fascinating, however not straightforward topic in international commercial arbitration. Subsequently, the concept’s intellectually appealing characteristic encouraged scholars and somewhat practitioners to cope with it in the last few decades and still interesting hot debates are developing surrounding this issue today.
What is transnational public policy? What are its content and sources? Does it play the same function in every stage of the arbitral process? Is a case with such subject-matter arbitrable? Should the arbitrator consider this issue in the award? Should the judge respect such norms in the enforcement stage? And what may the consequences or impacts of such a concept be on the governing law of the contract are some related questions that may arise when one is confronted with transnational public policy and its application in international arbitration.
This article offers a survey on the current literature and opinions regarding transnational public policy in international arbitration. However finally it suggests that in order to harmonize the decisions made on this issue in tribunals and courts, although judges are not required applying the notion, they should respect it too. Section one is an introduction and some preliminary issues are covered. The arbitrability test is covered in the second section. In the third section, considerations of transnational public policy and its function before an international arbitrator for rendering an award have been expressed. Forth section is all about the recognition and enforcement stage, where the award containing a transnational public policy issue is before a judge.