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"Harmony in diversity”: ASEAN’s arbitration reform in taming the “unruly horse” of public policy exception
Author(s)
Date Issued
2021
Citation
Tang, Y. (20 Nov 2021). “Harmony in diversity”: ASEAN’s arbitration reform in taming the “unruly horse” of public policy exception. International Conference: Sustainable Diversity in Arbitration, Nagoya University.
Type
Conference Paper
Abstract
With the signing of the Regional Comprehensive Economic Partnership (RCEP) in 2020, the economic relationship with the ASEAN member states is in the spotlight. And a rising volume of economic transactions generated by the RCEP, and correspondingly a growing number of cross-border commercial disputes involving ASEAN parties are anticipated. Arbitration, as the primary means of resolving international commercial disputes, is argued to be adopted within and beyond ASEAN.
Interestingly, the ten ASEAN jurisdictions represent varying and diversifying degrees of development, including both the leading jurisdiction in arbitration in the Asia Pacific such as Singapore and the least developed jurisdiction such as Myanmar. The fact that these ASEAN jurisdictions are at extremely different or various stages of development in arbitration, indeed provides us with a unique and golden opportunity to study their various reform efforts and initiatives. Looking at the latest developments and salient issues in arbitration in ASEAN member states, it is found that several jurisdictions (e.g., Thailand, Vietnam and the Philippines etc.) have made particular efforts (or taken significant initiatives) in
addressing public policy challenges to arbitral awards and their enforcement in recent years. The public policy exception (under Article V(2)(b) of the New York Convention), which expresses policy considerations for nonenforcement of arbitral awards, is frequently characterized as an “unruly horse” due to its ambiguity and indeterminacy. Focusing on the different practice of the selected ASEAN jurisdictions in interpreting and applying the public policy, this Article attempts to examine whether these jurisdictions with diverse legal culture and at various stages of development in arbitration may adopt different attitudes towards public policy exception (or take different initiative/reforms), and to shed light on whether there is a development pattern of “harmony in diversity” in their reform efforts in taming the “unruly horse” of public policy exception to arbitral enforcement.
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