International and Domestic Procedure of Ordre Public to Recognize and Enforce Foreign Arbitral Awards (Enforcement in France and Russia)

Abstract

The article analyzes judicial enforcement experience, legislation and French and Russian doctrines as to refusing to recognize and execute foreign arbitration awards as this contradicts ordre public. A division is made between the categories of domestic ordre public and international ordre public. The majour methods applied in the paper are comparative analysis and comparative law. The article touches upon the problems of material ordre public. A conclusion has been made that defining this category poses a serious problem. In comparison, the category of procedural ordre public is easier to define. Judicial practice does not give a definition of material ordre public but the underlying principle is that the system of principles and values embodying a national ordre public cannot be recognized even in international cases. French legislation and judicial practice has the concept of international ordre public and recognizing and enforcing foreign arbitration awards is understood in a narrower sense than international ordre public. Russian legislation does not operate the concept of international ordre public, but the analysis of legal norms allows making a conclusion that when recognizing and enforcing foreign arbitration awards, not a public order of the Russian Federation is meant but public order taking into account international obligations of the Russian Federation and the character of relations containing a foreign element. The research has allowed making the following conclusions. It is required to draw a clear line between French domestic law and international arbitration law as when checking a foreign arbitration award a judge can not refuse exequatur due to the wrong application of the norms of domestic ordre public. A simple violation by an arbitration award by French ordre public is insufficient to recognize it contradicting international ordre public. Russian legislation regulating the issues of recognizing and enforcing foreign arbitration awards needs to include the concept of international ordre public understood as fundamental legal principles of mandatory nature, universal character, special public significance and being the basis for economic, political, legal system of the Russian Federation considering its international obligations and the character of relations related to foreign enforcement.