The Privy Council has held (in Betamax Ltd. v. State Trading Corporation  UK PC 14) that since the arbitral tribunal had decided that the contract of affreightment entered into by the parties and which was the basis of the dispute was not within the ambit of the Public Procurement Act of the country involved, Mauritius, and that it was consequently not illegal, it was not open to the Court, the judgment of which had been appealed to the Privy Council, to reopen the issue whether the award was in breach of the public policy of Mauritius.
The general approach as to this ground to set aside an award is that there is a conflict with public policy if the operative part of the award is in breach of public policy. Along this line is Cardini Pietro et al. v. Multipartners (Court of Appeal, Milan, 20 May 2015).
In Nestlé Central and West Africa Limited c. SARL Periscop, the French Court of Cassation held on 29 September 2020 that the setting aside Court may not review the opinion expressed by the arbitrator as to the rights of the parties. It must limit its review to the solution given by the arbitrator to the dispute. In other words, the settings aside Court may neither review the merits of the decision of the arbitrator, nor review the construction given by an arbitrator to a contract. It must intervene if the enforcement of such award conflicts with the public policy, which may be the case if the contract is illegal.
It is not the purpose of these few lines to discuss the Privy Council’s decision, the background of which is not fully known, but to deal with that issue in general terms.
Not allowing the setting aside court to decide whether the contract on which the dispute is based is illegal since this has already been decided by an arbitrator, is not convincing.
The comparison between the issues of jurisdiction and of public policy may be a useful starting point. Jurisdiction, being the basis of the award, may be reviewed ex officio by the setting aside court in several jurisdictions, what implies its full examination of the facts related to it.
It is suggested that public policy is a value of a legal system which is indeed not less important than the issue whether a dispute has been decided by the right adjudicator. The setting aside Court should then fully review the related facts, in order to decide whether an award is in breach of public policy