Aligning State Sovereignty with Transnational Public Policy

Abstract

The rationale for “delocalizing” transnational public policy is not that domestic authorities lack the capacity to delineate the scope of transnational public policy. Rather it is that the public policy that is articulated solely through a domestic judicial lens can be fractionalized as national courts internalize public policy differently to comport with their discrete and sometimes conflicting domestic requirements. This Article uses controversial litigation in the United States and Russia to illustrate the disturbing ripple effect of domestic courts declining to enforce foreign judgments that have annulled arbitration awards. It proposes a way for domestic judges to apply transnational public policy to international commercial transactions, without displacing or circumventing domestic public policy. It applies this analysis to the “public policy exception” by which domestic judges decline to recognize and enforce international arbitration awards under the New York Convention.