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Importance of Public Policy in International Arbitration

   

Added on  2020-12-29

16 Pages5663 Words96 Views
critically evaluate the role of public policy in ascertaining the choice of law applicable toboth c

TABLE OF CONTENTSINTRODUCTION...........................................................................................................................3MAIN BODY...................................................................................................................................3Public policy and its advantages .................................................................................................3Importance of Public policy in international commercial law ....................................................4Types of public policies...............................................................................................................4Limitation of Public policies........................................................................................................5Evaluating the role of Public policy in ascertaining the choice of law applicable to bothcontractual and non-contractual disputes in the context of the Rome Regulations.....................5Determining the choice of Law applicable to international commercial disputes in line with theRome 1 regulation........................................................................................................................7Choice of law principle applicable to contractual and non contractual international commercialdisputes........................................................................................................................................8Issues of limitation of public policy on the choice of law doctrine in international commercialtransactions disputes..................................................................................................................10CONCLUSION..............................................................................................................................13REFERENCES..............................................................................................................................14

INTRODUCTIONPublic policy can be referred to as the principles or regulatory measures concerning agiven topic published by a government in the nation. The regulations related to conflicts forcontractual obligations may vary from one nation to other. Considering the continuous rise in thecommercial disputes, the government in the nation has enforced Arbitration act. It has beenanalyzed that selection of legislation is nowadays the biggest issue which has effected thecompanies operating business and those UK enterprises who are purchasing products or servicesfrom other nation. There are billions of financial transactions takes place on daily business. Aneffective selection of legislation rules assist investors, consumers and traders in gaining theconfidence related to the legal effect of their contracts. The Rome Convention has made significantcontribution in accomplishment of policy objective by rendering party liberty to chose law. It alsooffers legal certainty, flexibility and protection of weaker parties. Guiding principles of Romeconvention has assisted commercial parties in determining the norm which would apply to theircontracts.The report have focus on identifying function of public policy in determining the selection ofnorm which can be applied to both contractual and non-contractual disputes in the context of theRome Regulations.MAIN BODYPublic policy and its advantages Public policy can be referred to as the regulatory measures or system of laws concerninga given topic promulgated by legal authority in the nation. It can also be defined as authenticatedstatement of purpose and strategies or tactics of a governing bodies to eitherget rid of specificinsufficiency or issues. Purpose of implementation of public policy by government in nation isto solve specific problems faced by people or various industries in the nation. Public policies arecreated by systematic political procedure and are generally implemented by public agencies inthe country. There are great requirements of public policy in the nation as it helps legal authorityin setting a general tactics which is generally utilized for producing effective outcome. It alsosupports legal authority and other people in making important decisions. Public policy is

considered to be as crucial element of modern international law 1. Objective of public policy ininternational commercial law is to provide the states with "safety- valve" permitting them topreclude the implementation of honor which they consider hostile into their legitimate system.Public policy is considered to be as safeguard device which is utilized by the government in thenation for protecting the social as well as public interest of the assembly when a internationallegislation is to be applied. According to the Article 26 under Rome 2 regulation which statesthat the implementation of provision of the legislation of any nation specified Rome 2 might berefused only in case if such petition is manifestly does not match with the public policy of thecountry. Article 26 under Rome 2 regulation statesa rule of public policy which may beemployed to exclude the application of a international law that otherwise would be applied2 . Importance of Public policy in global commercial law In addition to this public policy is important as it assists people or public in knowing theintentions of legal authority related to specific department in the nation. The various publicpolicies allows people in the society to measure the achievements of the government. Publicpolicies also support in addressing important issues. Public policies created by the governmenthas direct as well as significant effect on the interest of people in the society. It is crucialprocedurte which balance the demand for exemption from the restriction of different states'national jurisprudence with the lawfully-begotten feeling of those states and the globalcommunity to assist and preserve basic feeling of justice as well as morality. The public policy isalso important, as by executing such policies Acquiring states could negate any unwanted grantacknowledgment as well as social control.Types of public policiesFormulation of Public policy includes various activities which leads to decision related topolicy. There are basically three types of public policies these are regulatory, disruptive andredistribute public policy. The purpose of regulatory policy is to maintain peace and restrict thebehavior of an individual which endanger society. Government by implementing the regulatory1Tung, S.H.L. and Lin, B., 2018. More Transparency in International CommercialArbitration: To Have or Not to Have.Contemp. Asia Arb. J.,11, p.21.2Martin, W., 2018. An Australian approach to International CommercialArbitration.Brief,45(2), p.24.

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