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Public policy paradox in enforcement of Foreign Arbitral Awards in BRICS countries: A comparative analysis of legislative and judicial approach

Chaman Lal Bansal (Management Development Institute, Gurgaon, India)
Shalini Aggarwal (Institute of Management Studies, Ghaziabad, India)

International Journal of Law and Management

ISSN: 1754-243X

Article publication date: 13 November 2017

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Abstract

Purpose

The purpose of this paper is to analyze the specific legislative and judicial approaches of each of the BRICS countries toward recourse to public policy exception in the context of recognition and enforcement of foreign arbitral awards. Further, it points out the critical areas which need immediate attention to make these countries attractive destinations for parking of investments by international parties.

Design/methodology/approach

The study is a conceptual paper that provides knowledge of the critical areas which needs immediate attention to make BRICS countries attractive destinations for parking of investments by international parties. The first part of the paper examines a guide map to the international business community to devise their dispute adjudication strategies before committing investments in any of BRICS economies. The second part examined the variegated notions of the concept of public policy exception and the existence of differences in judicial approaches. The next parts analyzed the specific legislative and judicial approaches of each of BRICS countries toward recourse to public policy.

Findings

The BRICS countries need to spell out the universal principles applicable to construing the notion of public policy. It would reduce conflicts between national laws and help the municipal courts in determining the issue of enforceability of foreign awards by reference to a common yardstick. Hence, until a harmonized approach to public policy toward foreign awards is developed at an international level, the BRICS countries may take initiative to set up an inter-regional arbitration council to resolve intricate cases occurring in the field of application of public policy exception to foreign arbitral awards.

Originality/value

The paper is an original work of the author.

Keywords

Citation

Bansal, C.L. and Aggarwal, S. (2017), "Public policy paradox in enforcement of Foreign Arbitral Awards in BRICS countries: A comparative analysis of legislative and judicial approach", International Journal of Law and Management, Vol. 59 No. 6, pp. 1279-1291. https://doi.org/10.1108/IJLMA-09-2016-0079

Publisher

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Emerald Publishing Limited

Copyright © 2017, Emerald Publishing Limited

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