A number of cases have recently come before the English courts dealing with applications to set aside orders for the enforcement of awards on the basis that the award is contrary to public policy because of illegality. There has not been a coherent policy adopted by the English courts but rather these issues have been dealt with on a case by case basis. This article sets out the English public policy rule. It then continues with an analysis of how challenges under the public policy rule are made in England on domestic arbitration awards. The severability of the arbitration agreement to the underlying contract is thereafter discussed and an analysis is given of the approach of the courts of England and Wales to the enforcement of foreign arbitration awards. In this regard the courts differentiate between domestic and foreign awards. They have developed a complicated test in deciding whether enforcement of a foreign award will be refused. The courts have stated that they will not permit an award to be enforced in England that is universally repugnant. However, there is some uncertainty as to the full extent of this principle. Where breach of public policy is alleged but does not appear on the face of the award then the courts have been inconsistent in deciding whether they should re-open and re-examine the facts of the case. Finally, where the award permits an act contrary to public policy to be undertaken in a foreign, friendly state then again the courts have been inconsistent as to whether such an award is permitted to be enforced in England.

The term “public policy” is open-textured and encompasses a broad spectrum of different acts. A contract may be contrary to public policy

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