KluwerArbitration

Document information Chapter 8: The Concept of Transnational Public Policy in

International Commercial Arbitration
Publication Domenico di Pietro
Achieving the Arbitration (*)
Dream: Liber Amicorum for
Professor Julian D.M. Lew KC In 1977 a young barrister of the Middle Temple, a research fellow at the City of London
Polytechnic, completed his PhD course at the University of Leuven analysing ‘The Choice
of the Applicable Law in International Commercial Arbitration – a Study in Decided
Arbitration Awards.’ The Study devoted a sizeable part of its scope to public policy, one
Bibliographic of the most significant and perhaps elusive issues in international commercial
reference arbitration. In the preface of his work, he acknowledged the support received from
several thought leaders of international arbitration, a status that our young barrister
Domenico di Pietro,
'Chapter 8: The Concept of would achieve not so long thereafter.
Transnational Public Policy The brilliant academic, of course, was Prof. Julian Lew. In that PhD thesis it is possible to
in International detect the prodromic traits of a brilliant jurist who, in the following years, would become
Commercial Arbitration', in one of the leading lights of international arbitration. In 1985 Julian Lew created the
Stavros Brekoulakis , School of International Arbitration at the Centre for Commercial Law Studies (CCLS),
Romesh Weeramantry , et Queen Mary, University of London, together with Sir Roy Goode, another giant of
al. (eds), Achieving the commercial law.
Arbitration Dream: Liber
Amicorum for Professor Julian Lew has been an inspiration to the thousands of students, including the author of
Julian D.M. Lew KC, this inconsequential paper, who have been lucky enough to attend his classes and
(© Kluwer Law appreciate his qualities as a human being and, of course, as a jurist.
International; Kluwer Law Public policy has been a constant interest in Julian Lew’s academic endeavours. As
International 2023) pp. 89 - suggested in one of his publications on the subject, public policy ‘reflects the
100 fundamental economic, legal, moral, political, religious and social standards of every
State or extra-national community. Naturally public policy differs according to the
character and structure of the State or community to which it appertains, and covers
those principles and standards which are so sacrosanct as to require their maintenance
P 90 at all costs and without exception’. (1) Indeed, public policy is the mirror of our social
values at the domestic and international level. It is the ideal line drawn by our sense of
morality that we believe should not be crossed if we want to preserve the world of values
we elect to live by.
Public policy remains an important subject years after Julian Lew’s initial foray into the
topic. Indeed, it is likely to become even more relevant in the future because of ever-
increasing global interaction and the seemingly faster shift in core policies and values at
an international level. As observed by Julian Lew: ‘Public policy […] is often perceived as
a national concept; a safety valve concerned with safeguarding the state’s most
fundamental national interests. However, owing to globalisation, the extensive cultural
interactions, and the exposure to other legal systems and practices, the concept of
public policy now includes anational dimensions reflecting fundamental principles and
interests shared by the international community.’ (2)
As suggested by Julian Lew, there is indeed wide consensus on the idea that there exist at
least three different levels of public policy in international commercial arbitration,
including some form of a-national corpus of public policy rules operating at a
‘transnational’ level, even though the actual scope and function of a-national public
policy is still open to debate. As observed by Pierre Lalive back in 1986: ‘In the whole
field, in full expansion, of commercial international arbitration, few subjects are more
vague, more difficult to seize and more controversial than that of the existence, contents
and function of a public policy which would be “really” or “truly” international, and which
it is better, if only for the sake of convenience, to call “transnational.”’ (3)
As is now well-known, the first two levels of public policy, national and international, are
both expression of domestic law. The first level applies necessarily to all purely national
legal relationships. Numerous national laws and courts recognize that in the presence of
a legal relationship characterized by an international element, such as the nationality of
the parties or the international scope of the underlying transaction, only a more limited
set of national public policy rules should apply. That more limited set of public policy
rules is described as (domestic or national) international public policy. The public policy
described as international under domestic law is nothing but a selection of domestic
public policy rules that the domestic legal system operating through its legislative or
judiciary branches believes should always apply irrespective of the nature of the issue at
hand. The two domestic levels of public policy are aimed at protecting the domestic
P 91 legal system. However, they do so with different intensity depending on whether the
instance under scrutiny is fully domestic or it has an international connotation limiting
its impact on the domestic legal system. (4)
The third level of public policy, branded by Pierre Lalive as transnational public policy,

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 is not the direct creation of domestic law, but rather the result of an international idem
sentire, i.e., a set of shared values that is common to the majority of countries and
persons, natural and legal, operating internationally. Those shared values permeate not
just the domestic laws of a vast number of jurisdictions but also international
instruments, including binding international treaties, aspirational declarations, soft law
instruments, and, last but not least, international jurisprudence (including international
commercial arbitral awards and the decisions of public international law courts and
tribunals). (5)
Transnational public policy is believed to be an even smaller collection of rules
compared to (domestic) international public policy because only a limited number of
principles and rules demonstrably can be said to have achieved widespread acceptance.
By way of example, as suggested by Stavros Brekoulakis, substantive and procedural
transnational public policy rules definitively include the prohibition of transactions
tainted by bribery and good faith prescriptions qualifying the right to object to the
jurisdiction of arbitral tribunals. (6)
A liberal approach to transnational public policy is normally favoured by commentators
who have embraced a concept of international arbitration as an autonomous legal order
that, as such, should enjoy a degree of autonomy from domestic legal systems. (7)
P 92 However, it would be wrong to entangle transnational public policy in the much
broader discussion of a theoretical systemic nature often complicated by personal
intellectual beliefs. There is no need to establish the existence of an autonomous arbitral
legal order to prove the existence of a self-standing set of rules that the international
community recognizes as necessary to protect the legality and fairness of international
trade. Indeed, it is no longer possible to deny that a close-knit community of human
beings has developed into a pluralist society where rules are created outside the
traditional paradigm of State and sovereignty. (8) The two elements genuinely necessary
to establish the existence and binding force of a set of rules are positive practice (as in
positive conduct) and opinio juris, the shared belief that a certain rule is fair and
necessary.
Some doubts have been raised about the actual scope or practical application of
transnational public policy. The general concern is rooted in the fact that a rarefied
concept of transnational public policy can only exist as a legal aspiration, but it cannot
be regarded as an operational system of positive norms. Indeed, it has been questioned
how transnational public policy, being an even more limited iteration of international
public policy adopted at domestic level, could effectively preserve the integrity of
international arbitration and international commerce. (9) It has also been observed that,
unlike domestic public policy, which is normally enshrined in statutes, transnational
P 93 public policy relies on norms the identification of which might prove problematic. (10)
However, the suggested objective difficulties are not a sufficient argument to disprove
the existence and operativity of transnational public policy rules, which are necessary to
preserve the integrity of international law and commerce irrespective of the rules of
domestic law otherwise applicable. Indeed, those same concerns could be levied with
regard to domestic law, yet it cannot reasonably be claimed that domestic law should
cease to exist, develop, or operate. The creation of new rules, and particularly the
codification of rules expressing fundamental values, has never been easy.
The domains of (national) public policy, including its narrower international declination,
and transnational public policy are distinguishable theoretically. However, their
respective contents may coincide to a large extent. But this overlap of rules should
neither surprise nor detract from the concept of an autonomous transnational public
policy. The objectives of domestic (including international) public policy and
transnational public policy are clearly distinguishable. It has been correctly observed
that the rules of transnational public policy exist to prevent or correct a public policy
breach affecting the international community, while domestic public policy rules,
irrespective of whether or not they coincide with transnational public policy, are
adopted and implemented to preserve the integrity of a domestic legal system. (11)
Having said that, a complete uniformity between domestic and transnational public
policy, in addition to being unharmful, is also unlikely. Indeed, transnational public
policy rules might also stem from sources other than domestic laws. The most obvious
examples of transnational public policy rules that may or may not have an immediate or
identical counterpart at domestic level are the collections of principles and rules
contained in international treaties, international declarations, international soft law
instruments, and international case law. As suggested by Pierre Lalive ‘[…] there can be
no total identity or assimilation between the two kinds of “public policies”, inasmuch as
the State international public policy inevitably retains a particular or even selfish
character, at least in part. Similarly, the fundamental values and interests of a given
State can hardly coincide fully with the values and fundamental interests of the
international community, just as the national concept of “international public policy”
cannot be identified with that of transnational public policy’. (12)
The tripartite representation of public policy is reflected on the endeavours of the
International Law Association on the topic of ‘Public Policy as a ground for Refusing
Recognition and Enforcement of international Arbitral Awards.’ The Committee in charge
of that effort, chaired by Pierre Mayer and Audley Sheppard, produced an Interim Report

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 that included a clear demarcation of the different levels of public policy. (13) In its Final
P 94 Report, the Committee agreed upon several Recommendations as to the application
of public policy by State courts. The Report confirmed transnational public policy as a
set of rules common to many States but substantially independent from national law. (14)
Existence and relevance of transnational public policy has been recognized also under
the 2016 UNIDROIT Principles. The commentary to Article 1.4, amongst other things,
suggests that ‘the arbitral tribunal may consider it necessary to apply those overriding
mandatory rules that reflect principles widely accepted as fundamental in legal systems
throughout the world (so-called transnational public policy or ordre public
transnational)’. (15) Several leading courts and arbitral tribunals also have recognized
both the existence of transnational public policy and the important role played by such
principle. (16)
P 95
The protection of the international community should not be exclusively delegated to
domestic law that may exist at a certain time and the jurisdiction of domestic courts.
Indeed, international arbitrators are better placed to recognize the existence of
transnational public policy rules and can operate more efficiently, at an early stage, to
address any potential public policy issues. Pierre Mayer, seems to agree by suggesting
that ‘transnational public policy is a necessary device in international arbitration. Since,
unlike a court, an international arbitrator is not an organ of a State – even the State
where he sits – it is neither easy nor satisfactory for him to rely on the public policy of any
given State. He needs to have his own public policy. Evidence of such a consensus will
most often result from a scrutiny of the legal systems of the various States, or from the
existence of one or more international treaties’. (17)
The identification of transnational public policy rules should not be limited to a
comparative law exercise. Transnational public policy is not the exclusive result of
certain public policy provisions coincidentally existing at a certain period of time in the
majority of domestic systems. The widespread acceptance at domestic level of a certain
rule is corroborative of the exercise but not a constitutive element of the principle. The
existence of a transnational public policy rule can also be evidenced by looking at
international treaties, international declarations, international case law, and
international soft law instruments. (18) Indeed, transnational public policy seems
particularly well-placed to incorporate new principles and rules taking into account for
the fast-developing needs and challenges of the international community. (19)
Irrespective of the different form and binding nature of international instruments, the
principles adopted therein may form part of transnational public policy. (20) If a State
P 96 signs a convention but does not actually ratify it, that State is not technically bound
by the convention, and the convention does not form part of that domestic legal system.
However, that State has contributed to forming consensus around the set of values and
principles contained in the convention, which may be used by international arbitrators to
identify transnational public policy rules that may be relevant to settle an international
commercial dispute. Widely accepted treaties should also apply irrespective of signing
and ratification by States the domestic law of which is applied to settle a dispute. (21)
Issues of transnational public policy have arisen and might arise at any stage of the
proceedings and in different forms. Arbitral tribunals are sometimes faced with the
enforcement of transactions potentially tainted by corruption, or in breach of
international conventions for the protection of health (22) or climate change. (23)
Arbitrations might also be commenced to manage bogus proceedings part of money
laundering schemes. (24) Arbitrators are therefore required to exercise caution, possibly
pushing their analysis beyond the seemingly legitimate façade of an arbitration. Similar
attention should be paid with respect to procedural issues. (25) An arbitral tribunal might
be presented with evidence seemingly or potentially gathered in breach of a
transnational public policy principle, such as the so-called exclusionary rule codified
under international instruments prohibiting evidence obtained by torture. (26) Where the
lex arbitri or the law otherwise applicable to the arbitration does not contain an
P 97 express provision reflecting that principle, the arbitral tribunal would be nonetheless in
a position to address the issue by turning to any relevant rule of transnational public
policy that the arbitral tribunal would deem applicable. (27)
Arbitrators should ascertain whether the mere application of domestic law may fail to
identify an inconsistency with wider and universally recognized public policy principles.
According to Georgios Petrochilos, ‘The point is not about using international law as a
device to alter the bargain of the parties. Rather, it is about the proper function of
international law in commercial and economic matters.’ The author suggests that there is
a body of international economic law codified in four principal sources including:
bilateral investment treaties, the UNCITRAL Model Law on International Commercial
Arbitration, specialized treaties such on the corruption of State officials or the protection
of cultural heritage objects, which may be relevant in disputes settled by arbitration, and
resolutions issued by international organizations affecting trade of certain commodities
or in specified geographical areas. (28)
As already suggested above, transnational public policy may also play a corrective role.
In the presence of an international commercial dispute, arbitral tribunals should indeed
consider the overall nature of the underlying transaction, irrespective of the choice of

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 applicable law made by the parties, to verify compliance with transnational public
policy. (29) As observed by Julian Lew: ‘transnational public policy is directly applicable
in international arbitration. Further, it is international arbitral tribunals which determine
the content of the transnational public policy and how it applies in the particular case. In
looking at transnational public policy in whatever form, arbitral tribunals, while owing
their responsibility to the parties, also have the right and perhaps the responsibility to
uphold that policy in the international arbitration environment. Whilst there are
principles behind this transnational public policy in each case, it is for the arbitrators to
P 98 decide if and how applicable’. (30) As it has been observed, international arbitrators
are best placed to apply rules of a transnational nature. (31)
Of course, arbitrators should exercise restraint when identifying and enforcing a rule of
transnational public policy. A too liberal approach aimed at creating rules rather than
just identifying and enforcing established ones would be problematic. (32)
A balanced approach was adopted by the Tribunal in WDF v. Kenya where the underlying
transaction was tainted by corruption. The Tribunal noted that arbitral tribunals often
base their decisions on universal values including transnational public policy. Because
bribery is, inter alia, against transnational public policy, the Tribunal concluded that
claims based on contract obtained by bribery could not be upheld. However, at the same
time, the Tribunal raised a systemic issue by observing that tribunals should be cautious
in resorting to transnational public policy, and they should ascertain the actual existence
of a given transnational public policy rule through the analysis of international
conventions, comparative law, and arbitral awards. (33)
Conclusions
Safeguarding the integrity of the international community through transnational public
policy rules may be perceived as an aspiration rather than the exercise of a mandatory
task. But transnational public policy, as vague a concept as it may seem, is just another
set of mandatory rules that the members of the international community believe are
necessary to protect certain fundamental values. The genetics of transnational public
policy rules is not so different from the genetics of rules meant to regulate legal
relationships at a domestic level. They develop in similar ways but operate in different
P 99 though interrelated spheres. The development of such important transnational
concepts is in part the result of the endeavours of enlightened jurists. Julian Lew is one of
them. And this paper is just a humble attempt to express gratitude to him.
P 99

References
*) The author is grateful to Jose Angelo (Anjo) David of GST LLP, Washington D.C. for his
insightful comments on a draft of this chapter.
1) Julian Lew, Applicable Law in International Commercial Arbitration (Oceana, 1978), p.
532.
2) Julian Lew, Transnational Public Policy: Its Application and Effect by International
Arbitration Tribunals, IX Conferencia Internacional Hugo Grocio de Arbitraje
(Fundación Universitaria San Pablo CEU, 2018), p. 17.
3) Pierre Lalive, Transnational (or Truly International) Public Policy and International
Arbitration, in P. Sanders (ed.), Comparative Arbitration Practice and Public Policy in
Arbitration, ICCA Congress Series, Volume 3 (Kluwer, 1986), 257.
4) On the issue of public policy in international arbitration see ex multis Linda
Silberman & Franco Ferrari, Getting to the Law Applicable to the Merits in International
Arbitration and the Consequences of Getting It Wrong, in Franco Ferrari and Stefan
Kröll (eds) Conflict of Laws in International Arbitration, ((Sellier, 2010), pp. 257-324.
Loukas Mistelis, ‘Keeping the Unruly Horse in Control’ or Public Policy as a Bar to
Enforcement of (Foreign) Arbitral Awards, 2(4) International Law Forum du droit
international (2000), pp. 248-253. Bernard Hanotiau & Olivier Caprasse, Public Policy
in International Commercial Arbitration, in Emmanuel Gaillard & Domenico Di Pietro
(eds), Enforcement of Arbitration Agreements and International Arbitral Awards: The
New York Convention 1958 in Practice (Cameron May, 2008). Domenico Di Pietro, Party
Autonomy and Public Policy Awards by Consent, in Franco Ferrari (ed.), Limits to Party
Autonomy in International Commercial Arbitration, (Juris, 2016), pp. 383-399.
5) Julian Lew, Transnational Public Policy: Its Application and Effect by International
Arbitration Tribunals, at p. 64.
6) Stavros Brekoulakis suggests ‘[…] only a limited number of rules and principles of
transnational public policy can be identified in relation to only some aspects of
international commercial and trade law, notably, the transnational policy
prohibiting contracts of, and arising out of bribery, and the principle of good faith in
the form of specific rules to deny spurious objections to the jurisdiction of
international tribunals.’ Stavros Brekoulakis, Transnational Public Policy in
International Arbitration, in Thomas Schultz & Federico Ortino (eds), Oxford Handbook
of International Arbitration (OUP, 2020) p. 149.

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 7) This issue cannot be meaningfully addressed here. For thorough analysis and
discussion see Emmanuel Gaillard, Legal Theory of International Arbitration (Nijhoff,
2010); Jan Paulsson, The Idea of Arbitration (OUP 2013); Julian Lew, Achieving the
Dream: Autonomous Arbitration, 22(2) Arbitration International (2006), pp. 179-203.
Julian Lew seemed to capture that aspiration of autonomy and self-sufficiency when
he observed, even though only with respect to the enforcement of arbitration
agreements and arbitral awards, that ‘the ideal and expectation is for international
arbitration to be established and conducted according to internationally accepted
practices, free from the controls of parochial national laws, and without the
interference or review of national courts’. Julian Lew, Achieving the Dream:
Autonomous Arbitration, at p. 179.
8) As observed by Catherine Kessedjian: ‘Whether we like it or not, we are living in a
world of legal pluralism. This means that transnational human activities, whether
commercial or not, are no longer regulated only by State-made law. We may take a
positivist attitude and deny the existence of legal pluralism. However, taking such an
attitude will make it very difficult to describe with accuracy the world as it has
evolved at least in the past two or three decades.’ Catherine Kessedjian,
Transnational Public Policy, in Albert Jan Van den Berg (ed.), International Arbitration
2006: Back to Basics?, ICCA Congress Series, Volume 13 (Kluwer, 2007) pp. 857-870, at
p. 858.
9) As observed by Stavros Brekoulakis ‘Ordre public international is a slender version of
international public policy which forms the lowest common denominator of very
fundamental state policies. Such a narrow concept of international public policy
naturally fails to cover anything more than the very obvious, blatant and really
uncommon cases of violation of international law, such as “drug or human organ
trafficking”, “violation of embargo or boycott laws”, “assembling a mercenary army to
support an insurrection against a legitimate government”, “agreements to transport
children intended for slavery of under age labour”, “supplying armaments to a
terrorist organisation and the supply of illicit drafts”, “bribery and corruption of
public officials” or “smuggling of goods of individuals into another country”. Although
public policy was always seen as a dynamic concept, ordre public international in
effect operates as the counterpart of jus cogens in international public law.
Therefore, ordre public international has a rather static concept that fails to take into
account the developments of the evolving civilisation of arbitration, and it hardly
corresponds to the increasing complexity and nuances of contemporary
transnational commerce.’ Stavros Brekoulakis, Public Policy Rules in English and
International Arbitration Law, 84(3) The International Journal of Arbitration, Mediation
and Dispute Management 205-220, at pp. 218-219 (2018).
10) Stavros Brekoulakis explains that ‘Public policy at such a high level of general legal
norms and abstract principles exists only as a matter of legal aspiration. When
transnational arbitration scholars talk about principles of transnational public policy
that are broadly shared “among the community of states” they probably mean
principles of transnational public policy that ought to be universally shared,
according to their own legal and moral considerations.’ Stavros Brekoulakis, ibid., at
p. 219. See also for a complete illustration of the issue, Stavros Brekoulakis,
Transnational Public Policy in International Arbitration, in Thomas Schultz & Federico
Ortino (eds), Oxford Handbook of International Arbitration (2020) OUP pp. 120-149.
11) Martin Hunter and Gui Conde E. Silva, Transnational Public Policy and Its Application
in Investment Arbitrations, 4 The Journal of World Investment, 367, (2003).
12) Pierre Lalive, Transnational (or Truly International) Public Policy and International
Arbitration in Pieter Sanders (ed.), Comparative Arbitration Practice and Public Policy
in Arbitration, ICCA Congress Series, Volume 3 (Kluwer, 1986), at p. 313.
13) ‘International public policy is understood to be narrower than domestic public
policy: not every rule of law which belongs to the ordre public interne is necessarily
part of the ordre public externe or international. […] The concept of “transnational
public policy” or “truly international public policy” is of even more restricted scope,
but of universal application – comprising fundamental rules of natural law, principles
of universal justice, jus cogens in public international law, and the general principles
of morality accepted by what are referred to as “civilised nations”’, International Law
Association – Committee on International Commercial Arbitration Interim Report on
Public Policy as a Bar to Enforcement of International Arbitral Awards at pp. 6-7.
14) Recommendation 1(b) ‘In these Recommendations, the expression “international
public policy” is to be understood in the sense given to it in the field of private
international law; namely, that part of the public policy of a State which, if violated,
would prevent a party from invoking a foreign law or foreign judgment or foreign
award. It is not to be understood, in these Recommendations, as referring to a public
policy which is common to many States (which is better referred to as “transnational
public policy”) or to public policy which is part of public international law.
International public policy is generally considered to be narrower in scope than
domestic public policy.’ Pierre Mayer & Audley Sheppard, Final ILA Report on Public
Policy as a Bar to Enforcement of International Arbitral Awards, 19(2) Arbitration
International, 251 (2003).

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 15) International Institute for the Unification of Private Law (UNIDROIT), UNIDROIT
Principles of International Commercial Contracts 2016 (integral version) commentary
to Article 1.4, at p. 13. Available at www.unidroit.org. Article 1.4 states: ‘Nothing in
these Principles shall restrict the application of mandatory rules, whether of
national, international or supranational origin, which are applicable in accordance
with the relevant rules of private international law.’
16) In Niko Resources Ltd. v. Bangladesh, the Tribunal stated ‘It is widely accepted that
the prohibition of bribery is of such importance for the international legal order that
it forms part of what has been described as international or transnational public
policy. […] Arbitral awards and learned writers have supported this position. The
matter was considered in particular detail and with admirable erudition in the World
Duty Free case by a distinguished tribunal. This tribunal concluded that “bribery is
contrary to the international public policy of most, if not all, States or, to use another
formula, to transnational public policy”. The tribunal reached this conclusion on the
basis of an analysis of a large number of international conventions, the decisions of
national and international courts and tribunals, and legal writings. […] The
consequence of this conclusion is that, as a principle of international public policy,
the prohibition of bribery overrides the general principle of party autonomy which is
widely recognised in international and comparative law. Normally, arbitral tribunals
respect and give effect to contracts concluded by the parties which agreed on the
arbitration clause from which they derive their powers. However, party autonomy is
not without limits. In international transactions the most important of such limits is
that of international public policy. A contract in conflict with international public
policy cannot be given effect by arbitrators.’ Also, the then House of Lords in Kuwait
Airways Corp v. Iraqi Airways Co & Anor 16 May 2002, UKHL 19 at para. 115: ‘This
conclusion on English public policy does not reflect an insular approach. Our
domestic public policy on the status of Resolution 319 does not stand alone. In recent
years, particularly as a result of French scholarship, principles of international public
policy (l’ordre public veritablement international) have been developed in relation to
subjects such as traffic in drugs, traffic in weapons, terrorism, and so forth […].’ Niko
Resources Ltd. v. Bangladesh Petroleum Exploration & Production Company Limited
and Bangladesh Oil Gas and Mineral Corporation, ICSID Case No. ARB/10/18, Decision
on Jurisdiction 19 August 2013, paras 431-434.
17) Pierre Mayer, Effect of International Public Policy in International Arbitration, in Julian
D. M. Lew and Loukas A. Mistelis (eds), Pervasive Problems in International
Arbitration, International Arbitration Law Library Series, Volume 15 (Kluwer, 2006) pp.
61-69.
18) George Bermann, Mandatory Rules of Law in International Arbitration, in Franco Ferrari
& Stefan Kroll (eds), Conflict of Laws in International Arbitration (Sellier 2011), at p.
336. See also Stavros Brekoulakis: ‘[…] to ascertain policy consensus requires the
review of a wide number of international legal documents, including arbitral awards
and court decisions, as well as international conventions and legal instruments
promulgated by international or intergovernmental organizations’. Stavros
Brekoulakis, Transnational Public Policy in International Arbitration, in Thomas Schultz
& Federico Ortino (eds), Oxford Handbook of International Arbitration (OUP, 2020) pp.
120-149 at p. 147.
19) According to Pierre Lalive: ‘Thanks to its evolutive and dynamic character, so often
emphasized above, the concept of transnational public policy allows today, and will
allow in the future, the incorporation in arbitration of the new needs and ideas of the
international community, in particular of the interests of developing States as
expressed, for instance, by or implied in the concept of “new international economic
order”. Also from this point of view, therefore, the concept of transnational public
policy appears to be an indispensable and important dynamic factor in the
development, through arbitration, of a law of international trade.’ Pierre Lalive,
Transnational (or Truly International) Public Policy and International Arbitration, in
Pieter Sanders (ed.), Comparative Arbitration Practice and Public Policy in
Arbitration, ICCA Congress Series, Volume 3 (Kluwer, 1986), at 315.
20) Catherine Kessedjian suggests: ‘[…] we would say that transnational public policy is
composed of mandatory norms which may be imposed on actors in the market either
because they have been created by those actors themselves or by civil society at
large, or because they have been widely accepted by different societies around the
world. These norms aim at being universal. They are the sign of the maturity of the
international communities (that of the merchants and that of the civil societies) who
know very well that there are limits to their activities.’ Catherine Kessedjian,
Transnational Public Policy, in Albert Jan Van den Berg (ed.), International Arbitration
2006: Back to Basics?, ICCA Congress Series, Volume 13 (Kluwer, 2007) pp. 857-870, at
p. 861.

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 21) According to Pierre Lalive, with respect to transnational public policy resulting from
international treaties: ‘A distinction should of course be drawn in this context
between general principles recognized or implicitly accepted by international
treaties in force, on the one hand, and those principles recognized in treaties which
are not in force or not yet in force. One should also distinguish, of course, the
influence of treaties from that of other instruments of international origin, and among
the latter a distinction should be made between the texts adopted by international
governmental organizations (such as UN Organizations, the OECD, etc.) and, on the
other hand, texts adopted by NGOS like the International Chamber of Commerce.’
Pierre Lalive, Transnational (or Truly International) Public Policy and International
Arbitration, in Pieter Sanders (ed.), Comparative Arbitration Practice and Public
Policy in Arbitration, ICCA Congress Series, Volume 3 (1986), at 315, at p. 307.
22) For example, the Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and their Disposal entered into force on 5 May 1992.
23) Take, for example, the Paris Agreement on climate change, adopted in 2015. It covers
climate change mitigation, adaptation, and finance. The Agreement was negotiated
by 196 parties at the 2015 United Nations Climate Change Conference near Paris,
France.
24) Kenneth Beale & Paolo Esposito, Emergent International Attitudes Towards Bribery,
Corruption and Money Laundering, 75(3) Arbitration: The International Journal of
Arbitration, Mediation and Dispute Management, Kluwer Law International, 360-373
(2009).
25) Fernando Mantilla-Serrano indicates that ‘A survey of the sources of arbitral
procedure shows that a transnational procedural public policy has indeed evolved,
and that its baseline is relatively undemanding, comprising the fairness or equality
principle that is embodied in the most basic notions of natural justice or due
process.’ Fernando Mantilla-Serrano Towards a Transnational Procedural Public Policy,
20 Arbitration International at p. 336 (2004).
26) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment New York, 10 December 1984,
https://legal.un.org/avl/ha/catcidtp/catcidtp.html. Article 15 it provides: ‘Each
State Party shall ensure that any statement which is established to have been made
as a result of torture shall not be invoked as evidence in any proceedings, except
against a person accused of torture as evidence that the statement was made.’
27) For a thorough analysis of decisions on public policy see Monique Sasson, Public Policy
in International Commercial Arbitration, 39(3) Journal of International Arbitration 411-
432 (2022).
28) Georgios Petrochilos, Three Pillars of International Public Policy, in Photini Pazartzis,
Maria Gavouneli, Anastasios Gourgourinis and Matina Papadaki (eds),
Reconceptualising the Rule of Law in Global Governance, Resources, Investment and
Trade. (Hart, 2006), pp. 309-318 at p. 312.
29) In ICC Case No. 15300 of 2011, the Tribunal remarked that ‘while it is true that the
parties subjected their contractual relationship to Swiss law, the matter between
Claimants and Respondent is purely international with no specific relation to the
Swiss legal order. The place of arbitration is France. Therefore, the yardstick of public
policy against which the Parties’ relationship must be measured is clearly an
international or universal one’. ICC Dispute Resolution Bulletin (Issue 1) (2016), at p.
82.
30) Julian Lew, Transnational Public Policy: Its Application and Effect by International
Arbitration Tribunals (Fundación Universitaria San Pablo CEU, 2018), at p. 64.
31) According to Alexis Mourre ‘no judge is better placed than an international arbitrator
to void contracts which seriously violate bonos mores or international public policy’.
Alexis Mourre, Arbitration and Criminal Law: Reflections on the Duties of the Arbitrator,
22 Arbitration International 95, 116 (2006).
32) According to Stavros Brekoulakis: ‘Appealing as this normative account of
transnational public policy may be, it must be resisted, because it dangerously
conflates the judicial function and legislative function and substitutes political
expediency for legal reasoning. As this chapter suggests transnational public policy is
a legal doctrine which includes legal norms, in the form of either legal rules or legal
principles. Non-legal standards such as morals and values may underpin some of the
rules and principles of transnational public policy, but they are not distinct public
policy grounds.’ Stavros Brekoulakis, Transnational Public Policy in International
Arbitration, in Thomas Schultz and & Ortino (eds) Oxford Handbook of International
Arbitration (2020) pp. 120-149 at p. 148.

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 33) ‘Arbitral tribunals have more often based their decisions on universal values in using
various formulations such as “good morals”, “bonos mores”, “ethics of international
trade” or “transnational public policy” But it has been rightly stressed that Tribunals
must be very cautious in this respect and must carefully check the objective
existence of a particular transnational public policy rule in identifying it through
international conventions, comparative law and arbitral awards.’ At para. 157: ‘In light
of domestic laws and international conventions relating to corruption, and in light of
the decisions taken in this matter by courts and arbitral tribunals, this Tribunal is
convinced that bribery is contrary to the international public policy of most, if not
all, States or, to use another formula, to transnational public policy. Thus, claims
based on contracts of corruption or on contracts obtained by corruption cannot be
upheld by this Arbitral Tribunal.’ World Duty Free Company Limited v. Republic of
Kenya, ICSID Case No. ARB/00/7, Award, 4 October 2006, at para. 141.

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