Party autonomy in international arbitration is the most compelling reason for the contracting parties to enter into arbitration agreement, rather than opting for litigation. However, arbitration functionalities may be hindered by several factors, one of which is 'arbitrability and public policy'. The 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards provides arbitrability and public policy as the grounds for refusing the recognition and enforcement of foreign arbitral award for signatory states, thus allowing national courts to use their own discretion when determining the scope of these two issues. Public policy is a concept that is adapted periodically in order to meet the changing societal needs, including political, social, cultural, moral and economic dimensions. As my study focuses on how each state balances its justice system and determines the finality of arbitration award, this paper will describe how each state applies arbitrability and public policy as a safeguard for their national legal system. It appears that, in the United States, legal matters are referred to arbitration relatively often, while European countries (specifically England, France and Switzerland, which are referred to in this paper) apply arbitrability and public policy only when it is necessary. Moreover, public policy in Mrica and Middle East is interpreted in a broader sense and the enforcement of foreign arbitral awards may be more difficult because of the inherent political risks and influence of Islamic law, while most Asian countries have attempted to model their public policy theory on the Western principles.

Arbitrability and Public Policy in Regard to the Recognition and Enforcement of Arbitral Award in International Arbitration : the United States, Europe, Africa, Middle East and Asia

Litigation involving intellectual property rights occurs frequently in France. Although parties may wish to have recourse to arbitration in order to settle their disputes, insecurity remains as long as parties can easily challenge the jurisdiction of the arbitrators by putting forward arguments relating to the existence of the intellectual property right. The French judiciary recently took a step towards circumventing this difficulty in a case involving a patent. This decision may also have an impact on the issues related to other forms of intellectual property rights.

Edouard Fortunet

Papers

Arbitrability of Intellectual Property Disputes in France