Social Sciences in China (Chinese Edition)

No.7, 2014

Public Policy in the Judicial Review of International Commercial Arbitration

(Abstract)

He Qisheng

In the judicial review of international commercial arbitration, Chinese courts strictly limit the application of public policy. It is mainly used in upholding China’s basic legal system, society’s fundamental interests and the country’s public morality. In terms of the means of determining public policy, the courts may give overall consideration to the following six factors: the international nature of the case and its relationship to Chinese law; the law of the court and the fundamental nature of the national interest; the requirements of the international system; the consistency of arbitration rulings; the objectivity and severity of consequential losses; and the nature of the international obligations, i.e., whether the matter comes under the obligations of the whole international community. Each country’s self-restraint in terms of public policy derives from the hope that its interests will be maximized through international cooperation. The “non-cooperative national interests” protected by public policy are mainly cultural and security interests. The application of public policy epitomizes a country’s attitude toward openness and isolation; it is also a game involving cooperative and non-cooperative interests.