مدى فاعلية النظام العام امام قضاء التحكيم التجاري الدولي

Abstract EN

Public order is a very complex and indefinable idea.

It is the safety valve for the internal systems of countries, and the national judiciary's means of excluding everything that might prejudice the fundamental principles and foundations of the state.

It is the national judge's weapon in protecting Those fundamental political, economic, social and moral foundations prevailing in his country, but the matter is different if international commercial arbitration is resorted to to resolve international trade disputes.

The arbitral tribunal or arbitrator does not guarantee the protection of the internal systems of countries, as all those national systems stand before them on an equal footing, because they are not subject to them, but rather are subject to the will of the parties to whom the dispute has been referred.

And they work to respect that will and what was directed towards it in the arbitration agreement or the arbitration clause.

Parties resort to international commercial arbitration due to the many advantages that arbitration enjoys in terms of speed and confidentiality of procedures and freedom to choose the applicable law.

Since arbitration is considered a judiciary parallel to the state's judiciary, countries have allowed to resort to it as a means of settling disputes in international commercial contracts in order to facilitate dealers in international trade, and this does not mean that international commercial arbitration enjoys full independence from the interference of the law and the judiciary in it.

Arbitration is an agreement and therefore the objective and formal conditions must be met in it.

In addition to the procedures carried out by the arbitral tribunal or the arbitrator, the essential guarantees of litigation must be taken into account, or the invalidity will pursue their procedures, and the invalidation of these procedures is only through the submission of one of the parties a request to establish an action for nullity or appeal.

Arbitration ruling before the national judiciary to prevent its implementation by the party affected by it.

Because these issues are considered part of the public order in litigation and may not be ignored, this is on the one hand, and on the other hand, the international commercial arbitration judiciary, if it is not subject to the public order in the internal regulations of the countries, then it is subject to the true trans-international public order, in addition to the subjection of arbitration rulings to oversight Judicial in the event of resorting to the state's judiciary for recognition and forcible execution of those issued judgments or filing a lawsuit to nullify them, as indicated above.

Which may not be implemented in the event that it violates the public order of the state in which the judgment is required to be executed, and therefore the international commercial arbitration judiciary does not depart from the sway of the law and the national judiciary, as it respects the fundamental foundations and general principles that constitute the general order of the state