Arbitral awards from
non-ICSID investment-treaty arbitration can be challenged in domestic courts.
‘Contrary to public policy’ will be available as one ground of challenge.
Because it is notoriously vague, ‘public policy’ can seemingly accommodate
various kinds of challenges. Most, however, fail. Domestic courts have
generally imposed high thresholds for such challenges. But is this also the
case in respect of investment-treaty arbitral awards?
For this article, ninety-one cases were
surveyed in which an investment-treaty arbitral award was met with a public
policy-based challenge. Award-debtors were rarely successful. But whether they were
successful or not, these cases have created a wealth of jurisprudence on public
policy-based challenges to investment-treaty arbitral awards. This article
investigates that jurisprudence in view of determining whether divisions have
emerged across different legal systems regarding, one, the substantive meaning
of ‘contrary to public policy’ and, two, the procedural rules relating to such
challenges.