This article grows out of a presentation made at the meeting of the International Bar Association in Auckland on 27 October 2004. I thank my Debevoise colleagues Alexander Greenawalt and Bruce Klaw for their assistance. I have known Robert Briner for as long as I have been involved in international arbitration, having met him in 1985 when I began service as a legal assistant at the IranUnited States Claims Tribunal. Like so many in the international arbitration community, I have since had the great privilege of appearing before him as advocate, sitting with him as arbitrator, and working with him as colleague in various professional activities, most closely when I served a term as Chair of the US ICC national committee. His intellect, judgment, and commitment to the profession provide a standard for us all to emulate

I. Introduction

Public policy has long been a ground on which a State might refuse to enforce arbitral awards and judicial judgments rendered outside its territory.1The defense recognizes the enforcing State's right to determine the effect in its own territory of a proceeding taking place elsewhere and seeks to ensure compliance within that State with its fundamental values and mandatory laws.

Notwithstanding its wide acceptance, the defense has remained difficult to define. The New York Convention codifies the public policy defense in Article V.2(b), which provides that '[r]ecognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that . . . [t]he recognition or enforcement of the award would be contrary to the public policy of that country'. The Convention does not define the content of the defense, however, but defers to the norms of the enforcing State. Hence, persistent questions arise: Under what circumstances should a State's courts invoke public policy as a basis upon which to refuse [Page235:] enforcement of an international arbitral award? Should the standard applying to international arbitral awards be different from that applying to domestic awards or court judgments? What deference, if any, should a State's courts extend to the arbitrators' own assessment of the issues giving rise to the defense?

This article examines the application of the substantive public policy defense by US courts. 2First, it provides an overview of existing case law interpreting Article V.2(b). Almost universally, US courts have rejected attempts to resist enforcement pursuant to this provision. In so doing, they have stated a high threshold, holding that an award must violate 'basic notions of morality and justice' before public policy comes into play. In practice, the case law turns on a more concrete proposition: that parties seeking to resist enforcement must demonstrate a clear legal bar to enforcement and cannot simply rely on vague appeals to national interests. Second, it considers the limits of this substantive public policy threshold in the context of two recent judicial decisions-one by a US federal court, the other by a California state appeals court-that have suggested that Article V.2(b) might not preclude a court from enforcing a contract even where enforcement would violate the otherwise applicable substantive law of the enforcing jurisdiction. Finally, it considers arbitrability as a component of public policy. Although US courts have tended to discuss Article V.2(b) in the context of substantive standards rather than arbitrability, it is the latter doctrine that, by limiting court review of arbitral resolution of public policy challenges, should ensure a disciplined application of the public policy defense.

II. US case law concerning the public policy bar to enforcement of foreign arbitral awards

The best known US case addressing Article V.2(b) of the New York Convention is the 1974 decision of the US Court of Appeals for the Second Circuit in Parsons&WhittemoreOverseasCo.,Inc. v. Société GénéraledeL'industrieduPapier (RAKTA).3 Noting the 'general proenforcement bias informing the Convention', and observing that '[a]n expansive construction of the defense [Page236:] would vitiate the Convention's basic effort to remove preexisting obstacles to enforcement', the court held in that case that recognition and enforcement of foreign awards should be denied based on a public policy defense only where 'enforcement would violate the forum state's most basic notions of morality and justice'. 44

While this formulation may underscore that a high threshold applies, it does little more. The Parsons court did not elaborate upon the factual scenarios that might trigger the test, and subsequent case law has provided little additional guidance.

Almost without exception, US courts have rejected attempts to invoke Article V.2(b) as a basis for refusing enforcement of a foreign arbitral award. 5 The results in these decisions have not required an inquiry into the meaning of 'basic notions of morality and justice'. Instead, they have flowed from a basic proposition: that parties resisting enforcement of an international arbitral award may not simply appeal to some generalized State policy with whose aims the arbitral award might conflict. As the US Court of Appeals for the Second Circuit has recently noted, '[a] court's power to invoke public policy to reject an arbitral award is limited to situations where the contract as interpreted by the arbitrators would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests'. 6

In Parsons, for example, a US party ceased performance of a construction contract requiring performance in Egypt after the United States severed diplomatic relations with Egypt following the Six Day War, Egypt ordered US nationals to leave Egypt unless they qualified for a special visa, and the United States Agency for International Development terminated funding for the project. 7The arbitral tribunal largely rejected the company's defense of forcemajeure,and the enforcement court rejected its defense that its duty 'as a loyal American[Page237:] citizen' required that it abandon the contract.8 In affirming this decision, the Second Circuit distinguished between 'national policy' and public policy, observing that Article V.2(b) 'was not meant to enshrine the vagaries of international politics under the rubric of "public policy"'.9 Looked at another way, the court effectively held that there was no public policy bar to a contractual allocation of the risk that external factors would cause performance to become more difficult or impossible. The court also rejected the contention that the dispute was not arbitrable because some 'national interest' was involved, holding that the doctrine of nonarbitrability applied only to discrete categories of claims. 10

Other decisions have rejected similar claims. In AntcoShippingCo.,Ltd. v.SidemarS.p.A., 11 a US district court compelled arbitration after rejecting a claim that enforcement was barred by the public policy reflected in the antiboycott provisions of the Export Administration Act of 1969 and its accompanying regulations. After first holding that the statute did not reach the contract at issue, the court held that even if it did apply, it '[fell] far short of entirely forbidding . . . performance under the contract'.12 In NationalOil Corp. v.Libyan SunOil Company13,a different US federal district court rejected a public policy challenge to enforcement of an award by a US oil company that had ceased performance of a contract for the exploration and production of oil in Libya in alleged compliance with US sanctions against Libya, which prohibited the use of US passports for travel to Libya and restricted oil imports and exports between the two countries. 14 As in Parsons, the arbitral tribunal had held that the circumstances did not constitute forcemajeure. After declining to revisit that determination, and noting that the contract was not illegal under the sanctions regime,15 the court rejected the company's broader appeals to US antiterrorism policy, noting that '"public policy" and "foreign policy" are not synonymous'. 16[Page238:]

Implicit in AntcoShipping and NationalOil is the suggestion that, had the contracts on which the awards were based actually contravened the US statutes or regulations at issue, a genuine issue of public policy would have been raised.17 There appears to be only one case, however, in which a US court has refused enforcement of an international arbitral award on public policy grounds. In LaminoirsTrefileriesCableriesdeLensS.A. v. SouthwireCo., 484 F. Supp.1063 (N.D. Ga. 1980), a federal district court in Georgia cited Article V.2(b) torefuse enforcement of a portion of an arbitral award that applied a French statute to require payment of a 'penal' five percent per annum increase in interest two months after notification of the award.18Although the court affirmed the award of interest at a rate that fell at the upper limit of the state's usury laws, it rejected the per annum increase, noting that agreements to pay fixed sums as contract damages that bear no reasonable relation to any probable damage resulting from the delay in recovery would not be enforced or recognized.19 While the notion that the marginal interest at issue in Laminoirs might violate international public policy is worthy of ridicule, the aspect of the challenged award held offensive is consistent with the proposition that an award must implicate a definite and concrete norm of law before it might give rise to the public policy defense.

III. The Aeroflot and Kashani cases

Two recent decisions involving US sanctions against Iran provide a useful case study of the public policy defense under US law. Both decisions suggested that Parsons could require a court effectively to enforce an illegal contract where the parties had subjected their dispute to international arbitration.

In MGMProductionsGroupInc. v.Aeroflot RussianAirlines,20 a US federal court enforced an award issued by an arbitral tribunal sitting in Stockholm that had rejected the defense that the contract was illegal under the US sanctions. In Kashani v. TsannKuenChinaEnterprise Co., a defendant in a breach ofcontract action successfully avoided liability on the ground that the contract [Page239:] was illegal under those sanctions and therefore unenforceable. ,21 Hence, both cases involved a contract between a US and foreign party that allegedly violated the various executive orders and US Treasury Department regulations implementing US sanctions against Iran.

In Aeroflot, the dispute arose under a contract by which a US company, Russo International Ventures, Inc., undertook to provide consulting services to Aeroflot in connection with Aeroflot's attempts to lease commercial aircraft and aircraft parts to Iran Air.Aeroflot refused to pay certain commissions demanded by Russo, claiming among other things that the contract violated the Iran sanctions regime and was therefore unenforceable. The arbitral panel ruled in favor of Russo, determining that Aeroflot had breached the contract, rejecting its defense that the contract violated the sanctions, and awarding monetary damages. Russo's successor then sought to enforce the award in the US District Court for the Southern District of New York. In an unpublished decision, the court rejected Aeroflot's Article V.2(b) defense, agreeing with the arbitral tribunal that the underlying contract did not violate the sanctions. ,22

That determination alone was dispositive, but the court did not stop there. It continued by 'assuming arguendo that the Agreement did violate the Executive Orders and OFAC Regulations' and held that, even on that assumption, 'Aeroflot has not convinced the Court that the public policy defense supports its cause'. ,23 Citing the Parsons standard, the court emphasized that '[p]ublic policy arguments, such as those presented here, should be accepted with caution, so as not to discourage enforcement of United States arbitration awards by courts of other countries'. ,24 'Here', the court explained, 'Aeroflot unconvincingly alleges that the Agreement violates the United States's foreign policy respecting Iran.' ,25 However, the court continued, '[i]t has not persuaded the Court that the Agreement violates our country's "most basic notions of morality and justice".' ,26 In other words, the court held that, even if enforcement of the award would contravene an express judgment of the political branches on a matter within their foreign affairs competence, it would not rise to the level of public policy warranting a refusal to enforce. [Page240:]

Hence, while the Aeroflot district court relied on Parsons, it went well beyond its holding. The court appeared to believe that its alternative holding flowed readily from a basic proposition established by Parsons, namely, that mere violations of 'national policy' do not rise to the level of 'public policy' violations. But the hypothetical scenario the court raised is the precise situation that the Parsons line of cases did not face: a case in which the parties have entered into a contract specifically prohibited as a matter of domestic law, and not simply in alleged tension with some broad US foreign policy goals. In that situation, which is the one hypothesized by the Aeroflot district court, the enforcement court is asked to bring to bear the coercive power of the state on behalf of a result prohibited by its own law.

The US Court of Appeals for the Second Circuit affirmed, but on different reasoning. Without revisiting the merits of the public policy defense or assessing the substantive requirements of Article V.2(b), the court emphasized that the arbitral tribunal itself had rejected Aeroflot's argument that the contract under dispute violated the sanctions regime. Specifically, it held that it would 'accord great deference to the arbitrators' factual findings and contractual construction' and then observed that, even if it did not, 'it would be, at most, doubtful' that the Agreement contravened the regulations. ,27 Given the uncertainty, the court stated that it could not say that the contract contravened fundamental public policy. ,28The court did not explain why it could not have simply resolved the doubt and answered the question rather than use the doubt as a reason to avoid it.

The following year, the Kashani court considered the same executive orders and regulations at issue in Aeroflot. The plaintiffs, US citizens, brought suit against a Chinese corporation and certain subsidiaries seeking compensation for economic harm, including lost profits, suffered on account of the defendants' refusal to perform under a contract providing for the sale of computers to a plaintiffowned corporation in Iran. The trial court granted the defendants' motion for summary judgment, holding that both the contract and its performance were 'illegal and against public policy in that [they] violate[d] United States presidential executive orders and implementing regulations, both of which prohibit, without a license, any "United States person" from engaging in any transaction, either directly or indirectly, that deals in or relates to the exportation, sale or supply of goods, technology or services to Iran or the Government of Iran or any investment in or financing of such transactions'. ,29As a matter of California law, therefore, the court ruled the contract to be unenforceable. [Page241:]

The California Court of Appeal upheld the trial court's determination, agreeing that California law prohibited enforcement of the contract. In so doing, the court specifically addressed the Aeroflot decision, upon which the plaintiff had sought to rely. Although the Kashani court noted that the Aeroflot court had 'agreed with the arbitral panel that the agreement did not violate the Orders or Regulations', it emphasized that court's alternative holding that the question was immaterial given the distinction 'between public policy as contemplated by Article 5 of the New York Convention as a ground not to enforce a foreign arbitral award and national public policy that might cause a domestic court to consider a contract illegal'30 Thus, the Kashani court concluded that 'arbitration enforcement cases arising under the New York Convention are not determinative of judicial treatments of contracts that violate law'. ,31

IV. Arbitrability and public policy

Together, the district court decision in Aeroflot and the appellate court decision in Kashani could be read to endorse the proposition that, had the Kashani parties submitted their dispute to international arbitration, and had the arbitrators awarded damages for breach, a US court would be compelled, on the ground that 'basic notions of morality and justice' were not implicated, to enforce the award notwithstanding the manifest illegality of the contract under the law of the enforcing jurisdiction. The Parsons rationale cannot sustain that proposition. Instead, US courts must break out the arbitrability component of public policy, and they must distinguish between fundamental principles of the enforcing state and the express legislative or executive judgments reflected in the sanctions cases.

1. Arbitrability. Though separately stated in Article V.2(a), arbitrability is but a species of public policy.32 As the Aeroflot appellate court recognized, when an arbitral tribunal rejects the contention that a contract violates regulations on which a public policy defense rests, the first question to be asked is the effect of that determination. If the defense is one that the parties may agree to arbitrate, US law would amply justify the court in rejecting the defense and enforcing the award without, as the district court did on both prongs of its analysis, revisiting the issue denovo.[Page242:]

In its much discussed decision in MitsubishiMotorsCorp. v. SolerChryslerPlymouthInc.,33 the US Supreme Court held that statutory claims under USantitrust laws were arbitrable under a contract governed by Swiss law. Balancing the national interest in enforcement of the antitrust laws with the policy in favor of enforcing arbitration agreements, the Court held that '[s]o long as the prospective litigant may effectively vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function'. ,34 In so ruling, the Court relied upon representations of counsel at oral argument and its own review of the record to conclude that the arbitral tribunal would hear the US statutory antitrust claims notwithstanding the choiceoflaw clause. ,35 Conversely, the Court cautioned that 'in the event the choiceofforum and choiceoflaw clauses operated in tandem as a prospective waiver of a party's right to pursue statutory remedies for antitrust violations, we would have little hesitation in condemning the agreement as against public policy'. ,36

The Court also noted the availability of public policy review at the enforcement stage, emphasizing that 'the national courts of the United States will have the opportunity at the awardenforcement stage to ensure that the legitimate interest in the enforcement of the antitrust laws has been enforced'.37 It made clear, however, that it contemplated a limited scope of review, observing that '[w]hile the efficacy of the arbitral process requires that substantive review remain minimal, it would not require intrusive inquiry to ascertain that the tribunal took cognizance of the antitrust claims and actually decided them'.38 In other words, so long as the arbitral tribunal 'actually decided' the antitrust claims, US courts should abide by that determination. 39

That rationale applies squarely to the public policy defense asserted in Aeroflot. Once the arbitrators took the illegality defense under submission and actually decided it, Mitsubishi would indicate that an enforcement court in the United [Page243:] States should not revisit that determination. If a party challenging an award under the rubric of public policy could relitigate the underlying arbitrable issue in the name of judicial supervision of public policy, the efficacy of the arbitral process would be substantially weakened. 40 In short, if the claim, defense or issue is arbitrable, the arbitrators should be permitted finally to decide it, even though that approach necessarily risks erroneous application and hence underenforcement of the norm giving rise to the defense. 41

2. Public policy. The more difficult question is the one answered with such apparent ease by the Aeroflot district court-that is, even if the contract did violate US sanctions, should a court in the United States nonetheless enforce a ruling awarding damages for breach? Let's assume that, if the tribunal had rejected the underlying premise of the defense, the enforcement court would not consider the merits of the issue anew. But what if the tribunal declined to consider the defense, or, having determined that the contract violated the sanctions, held that they did not provide grounds for refusing to enforce the contract?

On that question, the Aeroflot district court's blithe reference to the Parsons formulation of 'the most basic notions of morality and justice' is wholly unsatisfactory. As the ILA Final Report recognized, there is a fundamental difference between public policy in the form of, on the one hand, 'fundamental principle, pertaining to justice or morality, that the State wishes to protect even[Page244:]when it is not directly concerned' and, on the other, 'rules designed to serve the essential political, social or economic interests of the State', or '"lois de police" or "public policy rules"'. 42 In the case of a rule of the latter category, such as the Iran sanctions, a reference to basic notions of morality and justice provides no guidance, as the rule embodies a specific judgment made by the State's policymakers entrusted to make that judgment about transactions with which those policymakers have determined that the State is 'directly concerned'.

The ILA Final Report thus recognizes the authority of the State to decline enforcement in the face of such a rule when 'recognition or enforcement of the award would manifestly disrupt the essential political, social or economic interests protected by the rule'. 43 It suggests-a bit unrealistically, given the character and provenance of such rules-that the enforcement court should determine, 'by consideration of the policy and legislative history of the law', whether 'the rule was intended to apply to prevent enforcement of an international arbitral award', and it urged caution before finding a violation in a case 'with strong international elements'. 44

As the ILA Final Report reflects, the question raised by the Aeroflot district court's hypothetical is subject to much more concrete analysis than the Parsons standard allows. In the case of a sanctions regime such as the one at issue there, an enforcement court could easily recognize the defense, since the very policy determination underlying the regime reflects the State's judgment about the importance of the rule to its core interests, and the transactions that the regime is intended to reach are, by definition, international. Indeed, it is hard to see how a domestic court could enforce an award legitimating conduct that on its face would be subject to criminal sanction in the enforcement jurisdiction.

As the Kashani court observed, commentators on the New York Convention have commonly urged that Article V.2(b), though it defers to domestic legal systems to define the content of public policy, should nevertheless be read to[Page245:] require domestic legal systems to embrace a distinct 'international public policy' standard that applies to cases arising under the Convention. 45 Indeed, Parsons and its progeny have been read to impose such a standard. 46 But the Kashani and Aeroflot cases illustrate why the Parsons standard provides no real guidance in the face of an express legislative or executive mandate on matters directly touching the enacting State, and why the Parsons line of cases provides no real support for the proposition that the US has yet developed a heightened international standard of public policy. Mitsubishi and Parsons are of a piece in showing respect for the results of the international arbitral process and demonstrating discipline in enforcing both international arbitral agreements and international arbitral awards. But neither sees that respect and resulting discipline to require an enforcing State to sacrifice its basic interests.

1
See e.g. United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958, 330 U.N.T.S. 3 ('New York Convention'), Art. V.2(b); Convention for the Execution of Foreign Arbitral Awards, 26 September 1927, 92 L.N.T.S. 302 ('1927 Geneva Convention'), Art. 1: 'To obtain such recognition or enforcement, it shall, further, be necessary: . . . (e) That the recognition or enforcement of the award is not contrary to the public policy or to the principles of the law of the country in which it is sought to be relied upon.'

2
For a discussion of the distinction between substantive public policy and procedural public policy, see the Final Report on Public Policy, International Law Association, Committee on International Commercial Arbitration, New Delhi Conference (2002) ('ILA Final Report'); Interim Report on Public Policy as a Bar to Enforcement of International Arbitral Awards, International Law Association, Committee on International Commercial Arbitration, London Conference (2000) ('ILA Interim Report').

3
508 F.2d 969 (2d Cir. 1974); see ILA Interim Report at 4-5.

4
508 F.2d at 973-74. Speaking on a global scale, the ILA has described this definition as 'the definition of public policy most often quoted' (ILA Interim Report at 4-5).

5
See e.g. A.M. Campbell, Refusal to Enforce Foreign Arbitration Awards on Public Policy Grounds, (2004) 144 A.L.R. Fed. 481, § 2a.

6
Banco de Seguros del Estado v. Mutual Marine Office, Inc., 344 F. 2d 255 (2d Cir. 2003) (internal quotation marks and brackets omitted).

7
508 F.2d at 9728 Ibid. at 974.

9
Ibid.

10
Ibid. at 975.

11
417 F. Supp. 207 (S.D.N.Y. 1976).

12
Ibid. at 215-16.

13
733 F. Supp. 800 (D. Del. 1990).

14
Ibid. at 804.

15
In this context, the court referred to subsequent regulations, not at issue, which expressly prohibited 'the performance by any U.S. person of any unauthorized contract in support of an industrial or other commercial or governmental project in Libya' (ibid. at 820 n. 35) (internal citation and quotation marks omitted). It thus noted that 'the U.S. government has demonstrated that it is more than able to indicate when a company such as Sun Oil must abandon its international contractual obligations for the good of our country'(ibid.). The court also observed in reaching its decision that the US government had expressly given Libya permission to bring its enforcement action in US courts and that the President was empowered by regulation to prevent the transfer to Libya of any damages paid (ibid. at 820).

16
Ibid. at 819.

17
See also Karen Marine Ltd. v. Omar Int'l Inc., 322 F. Supp. 2d 224, 229 (E.D.N.Y. 2003) (dictum) (enforcement of award that legitimated participation in Arab boycott of Israel proscribed by federal law would contravene public policy).

18
484 F. Supp. at 1069.

19
Ibid.

20
No. 03 Civ. 0500 (RMB), 2003 WL 21108367, (S.D.N.Y. May 13, 2003) aff'd, 91 Fed. Appx. 716 (2d Cir. 2004).

21
118 Cal. App.4th 531 (Cal. Ct. App. 2004). See also Bassidji v. Goe, 2005 U.S. App. Lexis 11238 (9th Cir. 2005) (refusing to enforce contractual guarantees in violation of Iranian sanctions regime).

22
2003 WL 21108367, *4.

23
Ibid. at *4.

24
Ibid. at **4-5.

25
Ibid. at *5.

26
Ibid.

27
91 Fed. Appx. at 718.

28
Ibid. at 718.

29
118 Cal. App. 4th at 537.

30
Ibid. at 555.

31
Ibid. at 556.

32
e.g. A.J. van den Berg, The New York Arbitration Convention of 1958 (Kluwer Law and Taxation, 1981) at 360.

33
473 U.S. 614 (1985).

34
Ibid. at 637, n. 19.

35
Ibid.

36
Ibid

37
Ibid. at 638. See also e.g. Scherk v. AlbertoCulver Co., 417 U.S. 506, 519 (1974) (recognizingarbitrability of securities fraud claims and noting that the claim 'could be raised, under Art. V[.2(b)] of the [New York] Convention . . . in challenging the enforcement of whatever arbitral award is produced through arbitration').

38
Ibid. at 638.

39
See Baxter International, Inc. v. Abbott Laboratories, 315 F.3d 829, 831833 (7th Cir. 2003) (ensuring that the arbitral tribunal 'took cognizance of the antitrust claims and actually decided them' was 'as far as [the court's] review legitimately goes'; arbitrators' resolution of antitrust issues was 'conclusive as between the parties).

40
Compare ILA Final Report, Recommendation 3(c), para. 52.

41
In the also much discussed case of Westacre Investments v. Jugoimport - SDPR Holdings Co., [1998] 4 All E.R. 570, an English court, citing Mitsubishi, made precisely that point, but it also suggested a greater willingness, in appropriate circumstances, to revisit the arbitral ruling. There the court enforced an ICC award issued in Geneva by a tribunal applying Swiss law. Faced with the allegation that the contract was entered into for the purpose of bribing Kuwaiti officials and was therefore unenforceable, the court deferred to the arbitrators' rejection of the defense. The court observed that it had to determine how much weight to attach to 'the risk that arbitrators might reach the wrong decision in a way which could not be challenged and thereby give effect to an underlying contract which the courts would have declined to enforce' (ibid. at 595). Under the circumstances there, the court determined that that risk should not be given decisive weight. It emphasized first the capabilities of the arbitral tribunal: noting that the parties had 'selected arbitration by an impressively competent international body, the ICC', the court held that an 'English court would be entitled to assume that arbitrators appointed were of undoubted competence and ability, well able to understand and determine the particular issue of illegality arising in the case' (ibid.). It observed also that the arbitrators' resolution of the issues 'involved no consideration of complex principles of law capable only of being safely determined by an English court', and that '[i]nsofar as it involves determination of questions of fact, that is an everyday feature of international arbitration' (ibid.). Hence, notwithstanding the court's reference to 'everyday' features of international arbitration, the Westacre court recognized, as had the Mitsubishi court, that the competence of arbitral tribunals to decide issues implicating the public interest necessarily entailed the cession to those private actors of some form of the police power of the State.

42
See ILA Final Report, Recommendation 1(d).

43
Ibid., Recommendation 3(b).

44
Ibid., para. 49.

45
See e.g. E. Gaillard & J. Savage, eds., Fouchard, Gaillard, Goldman On International Commercial Arbitration (Kluwer Law International, 1999), para. 1710; ILA Final Report, para. 10; ILA Interim Report at 2.

46
See ILA Interim Report at 13.