India: A late opening to the notion of international public policy?

• Published in: Arbitration international 2022-12, Vol.38 (4), p.249-261
• Main Authors: Vidyarthi, Abhisar, Hyaat Khan, Sikander
• Format: Article
• Language: English
• Subjects: Arbitration, International; International law; Judgments, Foreign; Jurisprudence; Political planning; Public policy (International law)
• ISSN: 0957-0411; 1875-8398
• DOI: 10.1093/arbint/aiac015

The New York Convention does not define the term public policy, and confers discretion on the member states to develop and apply their own notions of public policy. The development and evolution of public policy, at both national and international levels, have given rise to domestic and international interpretations of public policy. International public policy reflects only those notions of morality and justice that are relevant in the international context. It is widely recognized that domestic public policy should apply only to domestic awards, and states should endeavour to apply international public policy when dealing with the enforcement of foreign awards. While Indian courts do not make an explicit distinction between domestic and international public policy, they have traditionally been infamous for refusing enforcement to foreign awards based upon a broad public policy scrutiny. That said, in recent times, there has been a strong push to rectify India's image by narrowly interpreting the scope of public policy applicable to foreign awards. This article examines whether the recent favourable changes in the judicial and legislative outlook towards public policy have opened the doors for the application of international public policy to the enforcement of foreign awards in India.