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1 Indon. L. Rev. 1 (2011)

handle is hein.journals/indolawrev1 and id is 1 raw text is: 




  IMPLEMENTATION OF THE 1958 NEW YORK CONVENTION
  IN SEVERAL ASIAN COUNTRIES: THE REFUSAL OF FOREIGN
  ARBITRAL AWARDS ENFORCEMENT ON THE GROUNDS OF
                           PUBLIC POLICY

                           Erman Radjagukguk'

                                Abstract
   The national character of public policy indicates that the decision is up
   to the court of national country concerned. Therefore, each country can
   rule whether public policy and its related issues are part of the country's
   public policy Courts around the world have recognized that Article V of the
   Convention is discretionary. The courts of Civil Law countries appear to be
   interpreting public policy broadly. This is quite evident from decisions made
   by courts in Indonesia, The People's Republic of ChinaJapan and Korea. The
   Indonesian Court considered Article V (2) (b) of the New York Convention
   which states that the court may deny the enforcement of an arbitral award
   if enforcement would violate public policy of the place of enforcement.
   In addition, before the enactment of Law No. 30 of 1999 concerning
   Arbitration and Alternative Dispute Resolution, the Court referred to
   Indonesian Supreme Court Regulation No. 1 of 1999, which provides that
   the enforcement of foreign arbitral awards in Indonesia imitatively applies
   to awards which do not violate public policy order in terms ofall underlying
   principles of the Indonesian legal system and society. In Indonesia, Bakrie
   Brothers v. Trading Corporation of Pakistan Ltd., was the first case in which
   the Indonesian court rejected the enforcement of foreign arbitral awards
   for the reason of violating public policy.

Introduction
      Some 125 states have ratified the 1958 New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (the New York
Convention),2 including some Asian countries such as Indonesia, The People's
Republic of China, India, Japan, Korea, and Singapore. Under Article V (2) (b) of
the New York Convention, the courts of member states can refuse enforcement
of foreign arbitral awards if such enforcement is contrary to the public policy of
the state concerned. The New York Convention leaves the interpretation of the
abovementioned public policy to the courts of the member states concerned.3
      The courts of several Asian member states of the New York Convention
have different interpretations of public policy. Courts of civil law country have a
      1 Professor of Law at Faculty of Law University of Indonesia,
      2 Kenneth R. Davis, Unconventional Wisdom: A New Look at Articles V and VII of the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Texas In ternational
Law Journal37 (2002) : 43, 46
      1 Kenneth R. Davis, Ibid.


No. I - Volume 1, January - April 2011 i INDONESIA Law Review

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