Conceptions of public policy in the recognition and enforcement of foreign arbitral awards: a critical review of the practice in Kenya and Uganda

A comparative advantage that arbitration has over litigation is borne out of the autonomy that parties to an arbitration agreement enjoy. Beyond this the arbitration process is dependent on the public law of the states which provide the framework for the enforcement of arbitral awards. At the enforcement stage, one of the impediments to the recognition and enforcement of an award is the issue of “public policy” which is one of the grounds for refusing the recognition and enforcement of foreign arbitral awards under the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”). Christened the “unruly horse” public policy connotes the fundamental values, norms and principles that are essential to a State. While the discretion to determine what constitutes public policy is a reserve of the State the manner in which a State interprets public policy has an implication on the enforcement of an award. A narrow interpretation of the concept promotes the enforcement while a broad interpretation limits the enforcement of the award. The study concerned itself with the interpretation of public policy in Kenya and Uganda (both contracting states to the New York Convention). It reveals that courts in the two countries are prepared to void an award on account of public policy where the award is: contrary to the domestic laws; offensive to their national economic interests; and offensive to the domestic notions of justice and morality. An inevitable conclusion emanating from the analysis is that public policy is broadly interpreted posing a risk to the enforcement of foreign arbitral awards in the two countries.