The New York Convention: Concrete Jungle Where International Commercial Arbitration Dreams are Made of

This Comment examines the public policy exception contained in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) and argues that the treaty’s vague language and lack of uniform standards undermine its ability to provide the predictability and neutrality that make international commercial arbitration attractive. As international commercial arbitration has become the preferred mechanism for resolving cross-border business disputes, confidence in the recognition and enforcement of arbitral awards has become essential to the functioning of global commerce. The Comment traces the development of international commercial arbitration, the creation of the New York Convention, and the treaty’s implementation in the United States. It then analyzes how national courts have interpreted the Convention’s public policy exception, focusing on the differing approaches adopted by courts in the United States and France. While courts in both jurisdictions recognize that the exception should apply only in extraordinary circumstances, U.S. courts generally take a highly deferential approach that avoids reviewing the merits of arbitral awards, whereas French courts have increasingly undertaken more searching examinations of the factual and legal elements underlying the award. The Comment contends that these divergent approaches create uncertainty for parties seeking enforcement and weaken the Convention’s goal of promoting uniform treatment of international arbitral awards. To address these shortcomings, the Comment advocates modernization of the New York Convention through revisions that clarify the mandatory effect of valid defenses, expressly limit the public policy exception to international public policy, adopt a high threshold focused on fundamental principles of morality and justice, and define a constrained role for national courts reviewing enforcement actions. The Comment concludes that clarifying the public policy exception is necessary to preserve confidence in international commercial arbitration, reduce the influence of national judicial bias, and ensure the continued effectiveness of the New York Convention in an increasingly interconnected global economy. [This abstract was written by Microsoft Copilot, a generative artificial intelligence.]