Taxonomy of the Public Policy Defence in the Recognition and Enforcement of Arbitral Awards

The public policy defence against the recognition and enforcement of arbitral awards remains an active subject in the majority of the cases submitted in court. Based on qualitative content analysis of 42 court rulings, the researcher sought to establish trends in the development of the public policy in Kenya. Results show that there was a clear distinction between cases with defences rooted in the Constitution and the law, and general defences. Findings also suggest that the public policy leans more towards the finality of arbitral awards that conform to the Constitution and the law, providing a trend towards an accepted national definition and scope of public policy in the process of recognising and enforcing arbitral awards. Additionally, cases with public policy defences rooted in the Constitution and the law had a higher chance of being voided than cases with general defences. Finally, defences rooted in the Constitution had a lower chance of being voided than similar defences rooted in statutes and regulations. Recommendations have been provided on how training institutions can develop skills that minimise chances of overturning awards based on public policy defences, increase the chances of success where merited and how they can assist the courts in scoping the definition of the national public policy.