Public Policy-Based Challenges to Investment-Treaty Arbitral Awards

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.