A comparative analysis on the public policy exception in Private International Law

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LLM European Private Law

Master Thesis

A comparative analysis on the public policy exception in

Private International Law

Student: Constantin Mogos, 11314249 Supervisor: Dr. A.E. (Marieke) Oderkerk

Second Assessor: Prof. Dr. AAH (Aukje) van Hoek 6July 2017

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Abstract

The present thesis provides the reader with a comparative analysis on the public policy exception in private international law in the French and English legal systems and its relation with the public policy exception at EU level. In the research paper, we analyze the concept of each of the above-mentioned national systems with special focus on the historical background and development of the concept, the contemporary meaning and application of the concept. This cannot be done without presenting the mechanism and the effects that its application generates in the context of conflicts of laws. The analysis is mostly conducted through the examination of not only relevant English and French case law, but also doctrine and legislation. The purpose is to reveal the existing discrepancies between the two jurisdictions, which may or may not be as abrupt as one might think. At the European level, we will focus on doctrine and legislation, since we could not find case law on the public policy in the realm of conflicts of laws. When analyzing the relation between the national and European public policy, we will focus on the national and European fundamental values and interests in trying to find out if there is a concept of European public policy and how it relates to its national counterpart and whether the national courts are obliged to abide by crucial aspects and provisions considered essential by the EU law. The conceptual method is used in this paper because, in order to achieve its scope, the thesis will gravitate around the concept of public policy and its implications in the frameworks chosen, without trying to display the best rule or finding a better solution in order to make a recommendation. Therefore, the aim of the present thesis is descriptive.

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This thesis aims to explore the public policy exception in private international law (hereafter PIL) in the French and English legal systems and its relation with the public policy exception at EU level. In our endeavor, we will confine only to the realm of the conflict of laws as a critical constituent of the notion of public policy in the Private International Law context, without exploring the subject of recognition and enforcement of foreign judgments. The present thesis analyzes the concept in each of the above-mentioned national systems and the reasoning behind their own approaches. In doing so, it pays special attention to the discrepancies between the two legal views, i.e. civil and common law, represented in this paper by the French legal system and, respectively, the English one, and whether these differences are such abrupt as one might think. For this, we will focus on the historical background and development of the concept, the specific way of thinking of the two legal systems, as well as the distinctive institutions and legal sources.

The relevance of this thesis derives from the fact that, in the present, it is hard to find a complete and up-to-date analysis of the public policy exception in PIL. Aiming to tackle this deficiency in the current literature, the present paper represents an original contribution to the field. Moreover, it has practical importance to legal practitioners, scholars and any other person interested in the mechanism of the public policy exception and its implications in PIL, as well as its connections with EU law. Furthermore, engaging in a thorough analysis of the relevant legislation and case law makes this subject more vibrant and appealing.

In England, even if in paramount departments of family law or in the case of renvoi the English courts tend to apply their own domestic law, in this way making the public policy doctrine less conspicuous than in French law1; nonetheless, it still retains its relevance as a common law representative in the European context. Regarding this system, it is fundamental to stress that the present paper will cover the period that precedes Brexit, as,

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the upcoming times of uncertainty until an official position in this matter is taken might hinder the emergence of an accurate analysis. Despite such a shortcoming, we are confident that the significance of this paper’s findings will persist even after this time of crisis. On the other hand, the structure of ‘ordre public’ is primarily embodied by statute as most civil law countries, even if French courts look at prior decisions in order to interpret it2. In the doctrine, the public policy exception is viewed as ‘l’enfant terrible du Droit international privé.’3 Some issues will be central as to the systems singled out: in which cases the public policy is mostly invoked, the distinction between national and international public policy and public policy characteristics. Thus, differences in the approaches of the two legal systems will help us draw a sharp distinction, and, ultimately, provide the outcomes that result from these empirical points of interest in order to come up with a sound and critical conclusion. As representatives of the two legal families, namely civil and common law, the French and English systems are indeed an inspired choice in pursuing the comparison, which would both find equivalent and diverse perspectives regarding the analyzed concept. Ultimately, our knowledge of the languages of these countries and the resemblance of the French legal system with my national legal system, i.e. the Romanian legal system, serve as convincing reasons that stand behind this decision.

Furthermore, this thesis will also look into the European public policy, and, more precisely, will determine if there are such concepts as European values and interests and if they are distinct from the national ones. It will also try to define the European public policy, even if scholars deemed it to be an elusive concept.4 Finally, we believe that it is of utmost interest for this analysis to take into consideration whether a decision to apply foreign law should also be measured against the values and interests of the Community.5 The research question this paper is seeking to answer is how the public policy exception is regulated in the English and French legal systems and what is their relation with the

2_{Murphy, K., The Traditional view of public policy and ordre public in Private International law, vol. 11:3,}

Ga. J. Int’l & Comp. L,1981, 599.

3_{Mayer, P., Heuzé, V., Droit international privé, 11}th _{edn, 2014, 153.}

4_{De Boer, Th.M., Unwelcome foreign law: public policy and other means to protect the fundamental values}

and public interests of the European Community, The external dimension of EC private international law in

family and succession matters, 2008, 26.

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public policy at EU level. When looking to provide an answer to the aforementioned research question, we will focus on the national and European fundamental values and interests in trying to find out if there is a concept of European public policy and how it relates to its national counterpart. The sub questions regarding the connection between domestic public policy and its EU counterpart and the differences and similarities between them will help us provide an answer to the main question. To answer the main research question, we will first explore the concept of public policy using the successive description. This means that all the sub questions will be answered for each legal system separately. Furthermore, this approach will provide the reader with an oversight of how the public policy exception works in each system depicted considering that the crucial aspects on this topic are closely and complexly related. Because this paper will compare EU and national public policy on the basis of the differences and similarities detected, the aim is a descriptive one. Regarding the methodology, we use in the present paper the conceptual method because, in order to achieve its scope, the thesis will gravitate around the concept of public policy and its implications in the frameworks chosen, without trying to display the best rule or finding a better solution in order to make a recommendation.

1.2 Meaning, role and limits of the public policy exception in PIL

After we depicted the conceptual and methodological issues of the present thesis, the natural step in our endeavor is to present a short introduction with regard to the basics of public policy, namely the definition, role and limits of the public policy exception in PIL. The definition, role and limits of the concept represent the points of departure that will help us find the answer to the research question that gravitates around concepts such as domestic public policy, European public policy and their particular mechanisms and spheres of application. Such an intervention is required, since we believe that these introductory details have the capacity to add coherence as well as accuracy to the general framework of the present thesis. This introduction can, nonetheless, be perceived as an initiation of the reader in our topic before thoroughly exploring each national perception and respectively, the European perception.

A recurrent opinion shared amongst scholars and practitioners is that the public policy concept presents difficulties vis-á-vis its own definition. However, a wide definition

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would certainly incorporate the fact that the public policy in PIL represents an exception that intervenes against the unacceptable effects of the foreign law (such effects put in jeopardy the national interests of the forum state).6 The daunting reputation of the public policy exception seems to clearly stem from the fact that judges are rather inclined to make use of it, despite its known characteristics as lacking clarity ‘in scope and content’. 7 The use of the public policy exception when fundamental values are at stake makes this concept an indispensable one. In fact, its utilization probably ensures its perpetual existence since conflicts between distinct laws of the states may arise. As a result of such developments, lex fori needs a way to safeguard its core principles. Moreover, De Boer asserts that the various references to the public policy concept reveal not only a certain difficulty in providing a comprehensive definition for the term, but also ongoing related debates amid the academic sphere.8

Another way of striving to explain the meaning of public policy is by examining its function considering that the meaning and function are closely connected.9 Following this idea, the function of the public policy exception is to verify the application of other rules of the private international law, considering that this exception is a way of impeding a certain provision of a foreign rule from applying in certain circumstances.

It can be described as being ‘essentially an escape route’ from the utilization of the particular foreign rule. 10 Another premise is that the public policy exception serves as a ‘formative principle’11 which ultimately defines the policies of a certain state that derive from its national interests. The universal perception towards the public policy exception is, hence, one that makes us think that this concept scarcely interferes, namely in those instances when fundamental values or principles of the state concerned are at risk and

6_{Pauknerová, M., Mandatory rules and public policy in international contract law, ERA Forum, 2010, 41.} 7_{Trimble, M., The Public Policy Exception to Recognition and Enforcement of Judgments in Cases of}

Copyright Infringement, Scholarly Works Paper 564, 2009, 644.

8_{De Boer (n 4) 1.}

9_{Blom, J., Public Policy in Private International Law and its evolution in time, Netherlands International}

Law Review, vol. 50, issue 3, 2003, 374.

10_{Carter, P.B., The role of public policy in English Private International Law, 1992, 1.}

11_{Kahn-Freund, O., Reflections on Public Policy in the English Conflict of Laws, Transactions of the}

Grotius Society, Vol. 39, Problems of Public and Private International Law, Transactions for the Year 1953, 39.

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only as a defensive mechanism12_{and as an ‘ultimatum remedium’.}13_{In the realm of the}

conflicts of laws, the foreign law designated by the conflict rules is removed from application in the case at hand merely when the result is rendered as unacceptable for the forum inasmuch as national interests or values are at stake. This is consistent with the reality that public policy has a contingent nature. Accordingly, the specific effects of a foreign rule may function or not, relying upon the surroundings of each case.14

The supremacy of the state over other institutions provides the sovereign state with the power to establish what values are sufficiently fundamental in order to trigger the application of the public policy exception.15 Nonetheless, the continuous evolution of the state’s interests, domestic principles or even international values generated the volatile nature of the content of the public policy exception.16 The public policy requirements may generally oscillate in relation with a particular connection with the forum. In this sense, the more vigorous the connection is, the more need for more demanding requirements.17

However, in case of fundamental values, which are crucial for the public policy of the forum, the sole reason of insignificant connection must not frustrate the application of the public policy exception.18

Moving forward in our attempt to explore the notion of public policy, one must be aware that studying the limits of the concept is essential insofar as it reveals the definite sphere of application of the public policy exception and the reasons why its application is not universal. The boundaries of public policy in PIL are generally fluctuant because of the different terminology used in the legal systems.19 According to the predominant view in the literature, the domain of application of the public policy exception in PIL should be

12_{Pauknerová (n 6) 41.} 13_{De Boer (n 4) 1.} 14_{Blom (n 9) 375.} 15_Ibid. 16_{Blom (n 9) 399.}

17_{Struycken, A. V. M., Co-ordination and Co-operation in Respectful Disagreement: General Course on}

Private International Law, Collected Courses, Hague Academy of International Law, Vol. 311, 2009, 397.

18_Ibid.

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delimitated from provisions concerning penal, revenue, and other public law,20_{as well as}

the statutory or codified rules of the forum,21 or the lois de police du for.22

Another distinction that will be of great aid in grasping the exact limits of the public policy concept is that between the domestic public policy and international public policy. The French scholars view the ordre public interne as having a suppressive nature due to the fact that it does not comprise the foreign understandings of the concept.23 On the other hand, the ‘ordre public international’ takes into account different foreign laws, which may govern a relation of private law, even analogous to French law.24 In the English literature,

there is a distinction between internal public policy (which applies to domestic cases), international public policy (which applies in the context of private international law) and ‘truly international’ public policy (which stems from international law), all of them being located on the same axis.25 This spectrum can be visualized as following: at one end of the

spectrum, one finds the domestic considerations as part of the local policies, whereas, at the other end, there are the crucial values which are shared by all states as indispensable elements of public policy.26 However, most norms would be positioned somewhere in between on the above-mentioned spectrum, namely those matching policies that are not universally accepted, yet are key for the domestic order and for which the state has great sensitivity in case of an infringement.27 Therefore, in order to determine which fundamental principles fall under the scope of the exception, one needs to look at each individual national system.

After examining the concept of public policy from a general perspective, the next step is to analyze this notion from the perspective of each domestic system, and, more importantly, to observe the distinct approaches of its utilization. Furthermore, in addition to the domestic angle of our empirical focus, the subsequent section examines the

20_{Blom (n 9) 377; Holder, W. E., Public Policy and National Preferences: The Exclusion of Foreign Law in}

English Private International Law, The International and Comparative Law Quarterly, Vol. 17, No. 4, 1968,

2; McClean, D., Abou-Nigm, V.R., The Conflict of Laws, 9th_{edn, 2016, 76.} 21_{Blom (n 9) 377.}

22_{Kitic, D., Droit international privé, Universités, Ellipses Marketing, 2003, 81.} 23_{Id 78.}

24_Ibid.

25_{Mills, A., The Dimensions of Public Policy in Private International Law, Journal of Private International}

Law, 2008, 213.

26_Ibid. 27_Ibid.

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existence of such fundamental values at European level, as well as whether they differ from their national counterparts. Following these considerations, the next chapter of this thesis explores the public policy exception in our two main case studies: England and, respectively, France.

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Chapter II: The meaning and application of the public policy exception in PIL in England and France

Firstly, in order to have a comprehensive understanding of the concept of public policy, it is important to analyze its evolution in the two legal systems. Secondly, we must make a distinction between the two doctrines of ordre public and public policy as the former is based on civil law and its statutes, whereas the latter follows its common law influence, albeit exigent forces of local morality and social order mandate both of them.28 We have chosen France and England as representatives of the two legal systems because of their significant influence upon the conceptualization and the development of the public policy exception in each legal tradition. These derive from the particular views and understanding of the concept and its implications, perspectives that we will try to depict as precise as possible.

In this chapter, an analysis will be conducted on the distinction between the two doctrines of public policy and ordre public from the two legal systems, while trying to identify all that is comprised in the notion of public policy in both jurisdictions.

2.1 England

2.1.1. Historical overview

The concept of public policy was first recognized in the English law in the XIVth century, with the mention that the first steps towards the present meaning of the concept started in the XVIIIth century when the judge had ‘a discretionary power to reject a claim or a cause of action in the absence of the precedent or statute.’29 The courts could base their rejection of a claim on grounds of public policy on precedents with the condition that these were sufficiently related to the case at hand; nonetheless, they could also look at statute law.30 In fact, the traditional idea of public policy was associated with preventing violations of

28_{Murphy (n 2) 591.} 29_{Id 591-592.} 30_{Id 592.}

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‘communas values and mores.’31_{Building up to this last idea, we need to assess the exact}

meaning of these rather rudimentary definitions of the public policy exception. Firstly, we can observe the indirect manner employed in trying to define the public policy exception, i.e. through its function rather than embracing a comprehensive definition. Secondly, and more strikingly, we can notice the ambiguous description of the substance of the national values and interests, which need to be at stake in order for the concept to be triggered. Thus, the path to the current view was persistently marked by severe strivings in order to get some form of consistency regarding the public policy exception. However, this process rendered some ambiguous illustrations of the national interests and values which were protected in such cases, such as: "immoral or illegal," "injurious to the interests of the public," or "productive of evil to the church and the community" which were meant as a defence mechanism against acts or causes of actions. 32 This general viewpoint, which merely corresponds to the period of emergence of the public policy exception, is perhaps explicable considering the reluctant and pragmatic English approach, which is best visible in the case of the courts’ scrutiny and their notorious hesitation in using the ‘unruly horse’.33 In this regard, the most memorable and, at the same time, comprehensive illustration of the erratic nature of the public policy was the dictum of Judge Burrogh, who compared public policy exception with an ‘unruly horse’34. Furthermore, Judge Jessel thickened the mist that encloses the perspective on public policy, affirming that ‘it is impossible to say what the opinion of a man or a judge might be as to what public policy is.’35

In the late XIXth century, English judges were pivotal in conceptualizing the public policy exception since they had unconditional discretion of designating the situations which would generate the application of the concept and, at the same time, the responsibility of finding the boundaries of this sphere.36 This particular trend was fostered by the fact that,

31_{The equivalent of the ‘ecounter commone ley’, reference in Ghodoosi, F., International Dispute}

Resolution and the Public Policy Exception, Routledge, 2016, 6.

32_{Murphy (n 2) 592.}

33_{Friedmann, W., Reviewed Work: Public Policy: A Comparative Study in English and French Law by}

Dennis Lloyd, The University of Toronto Law Journal, vol. 10, no. 2, 1954, 292.

34_{In J. Richardson v. Mellish (1824), 2 Bing. 252, Judge Burrogh stated: ‘I protest arguing too strongly}

upon public policy. It is a very unruly horse and once you get astride it, you never know where it will carry you.’

35_{M.R., Beasant v. Wood (1879), L. R. 12 C D. 620.}

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at that time, the English values were perceived as ‘superior’ to those of other nations.37

Such an impression lured English judges into using the public policy exception more frequently or to use it as to block the application of the ‘subordinate’ foreign law.38 Starting with the early XXth century, judges acknowledged the need for a more crystallized notion of the public policy exception upon which the duty of a court would be to "expound but not to expand" this field of law.39 A similar pattern can be observed in the French legal system, where jurists relinquished the idea of oppression towards the uncertainties of the public policy in favor of maintaining the same structure of the conflicts of laws.40

After examining the old perspective regarding the public policy exception, the following section aims to explore the present meaning as well as the application of the concept.

2.1.2. Meaning

Nowadays, it is settled that the public policy concept is determined according to the use that courts find for it in each case.41 In England, the general doctrine of public policy is dominated by ambiguity and skepticism.42 As to the realm of conflicts of laws, the English courts43_{are even more reluctant to ‘invoke the public policy exception than when}

a purely local issue is involved’.44_{Consequently, Lord Akin’s dictum becomes}

increasingly relevant and applicable in present times. According to his ideas, the public policy exception in domestic cases “should only be invoked in clear cases in which the harm to the public is substantially incontestable.”45 Hence, the English literature prefers to emphasize the ‘imprecision’ and ‘vagueness’ of ‘the unruly horse’.46 Furthermore, in the doctrine it is stated that the ‘public policy principle eludes more precise definition’, basing this opinion on the wording of influential judges who practically dealt with the

37_{O’Brien (n 36) 167.} 38_Ibid.

39_{Murphy (n 2) 592.}

40_{Mann, M., Lack of Consent as a Ground for Nullity and the Conflict of Laws, International and}

Comparative Law, vol. 3, no. 3, 1954, 488.

41_{Murphy (n 2) 592.}

42_{McClean, Abou-Nigm (n 20) 72.}

43_{Cheni v Cheni [1965], P 85 at 99, KC & Anor v City of Westminster Social & Community Services}

Department & Anor [2008] EWCA Civ 198.

44_{Mills (n 25) 202.}

45_{Fender v St. John Mildmay [1937] AC 1.} 46_{Mills (n 25) 203.}

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exception in the most direct way possible, i.e. by facing and having to adjudicate cases concerning this rather shifty concept.47

However, the radius of applying the public policy exception has to be limited as not to leave room for any abuse of the concept with the aim of applying the domestic law at the expense of the foreign one. Thus, the literature has advocated for limitations, such as the degree of local connection with the dispute and the degree of relativity of the norm of public policy in question, considering them useful in attempting to delimitate the scope of application of public policy.48 In conclusion, the extraordinary nature of the public policy exception has to be linked with the particular situations that demand its application. Moreover, the function of public policy is exceptional not only because it provides for an exception to the regular choice-of-law process, but also because it is a rule that analyzes the substance of the applicable law.49 This ‘last-ditched weapon’, as it was named in the doctrine is precisely designed to resist the application of the law that the particular conflict of rules has singled out.50_{The French doctrine undertakes a similar approach, as}

it underlines that this ‘dérogation exceptionelle’ has to be used only when the foreign law would be discordant to the French law.51

2.1.3. Mechanism

This subchapter refers to the analysis regarding the specific procedure of the public policy exception, which has an important practical value. Hereinafter, it is critical to note that the English doctrine does not rigorously depict and explore the precise steps that have to be carried out by the judges in order for them to sense if the public policy exception is applicable, which is contradictory to the French perspective.52 Therefore, one has to look at the specific situations that appear in practice and which render the application of the public policy exception rather than studying the English doctrine.

47_{Mills (n 25) 203.} 48_{Id 217.} 49_{Mills (n 25) 209} 50_{McClean, Abou-Nigm (n 20) 472.} 51_{Kitic (n 22) 80.} 52_{Mayer, Heuzé (n 3) 152.}

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The fact that the English doctrine does not examine the steps that lead to the application of the public policy exception does not leave us too much room for analysis. Nevertheless, the special identity of the public policy exception is underscored by the fact that the public policy is effectively employed solely in cases when the act of applying the foreign law would amount to an infringement of the fundamental values of the forum country.53 Consequently, it proceeds by way of analogy that the conditions that have to be fulfilled for the application of public order reservation are a sensible link between the case at hand and the forum state and a manifest breach of fundamental social, governmental and legal system principles of the forum state.54 In practice, the situations that fulfill both

requirements are quite rare.

Finally, the position of the judge regarding the employment of the public policy exception can reveal the practice of English judges and their perspective in such circumstances. In an English case, it was emphasized that the English judge must avoid taking the position of ‘blind adherence’55_{towards the foreign law, but instead disregard it when the outcome}

would be wholly incongruous vis-á-vis the crucial requirements of justice of the forum state.56 Conversely, the judge must not reject the foreign law merely because it is different from lex fori as the distinctions between laws represent the quintessence of the conflicts of laws.57 Thus, if all the laws were identical, the conflicts of laws would have no bearing at all.58 Consequently, the English judges must apply the public policy exception with considerable circumspection, without being biased towards one law or another.

2.1.4. Effects

In the last stage of examining the English public policy exception, we look at the effects of its application. This step is necessary in order to carry out a complete analysis of the concept. The effects of employment of the concept of public policy are the withdrawal of the foreign law by reason of being incompatible with the public policy of the forum and

53_{Mayer, Heuzé (n 3) 152.} 54_{Pauknerová (n 6) 41.}

55_{In the Estate of Fuld decd. (No 3) [1968] P 675.}

56_{Cuniberti, G., Conflict of Laws: A Comparative Approach, Edward Elgar Publishing, 2017, 135.} 57_{Cuniberti (n 56) 135.}

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the application of another law as a substitute. However, only the latter phase will be examined since it concerns a problematic issue in the English doctrine. Hence, in line with the predominant point of view of the legal scholars, the law applicable as a substitute for the foreign law is the law of the forum.59 Even if the law of the forum seems to be the handiest solution, in certain cases it is essential to look at another law, which might be more suitable. Consequently, only when certain circumstances are met, namely the compatibility with public policy and the applicability to the specific dispute, the application of the residual applicable law (in the sense of a backup law) becomes a viable alternative.60 Therefore, according to the English doctrine, a state of uncertainty still persists on account of the oscillation between the residual applicable law and the law of the forum as a suitable substitute for the foreign law.61 Even if the majority of the jurisdictions prefer to apply the substantive law of the forum, lawmakers have criticized this practice, as it is plausible that lex fori does not possess such a close connection with the dispute in some cases.62_{In short, even if there is a tendency towards the law of the}

forum, it is of great significance to examine all the circumstances of the case. Such a focused approach may help us examine whether a different law is more suitable.

2.1.5. Case law

In order to add a more practical value to our analysis, in this last section we will examine the case law and we will refer to the perspective of the doctrine regarding the criteria that have to be considered when employing the public policy exception in each case. Defining the role of the concept of public policy in connection with the domain of conflict of laws is very important, because an improper application of the exception may lead to the disruption of the entire system of private international law; thus, the limits of the concept should be properly established.63 The well functioning of the system of conflicts of laws sometimes implies the application of other foreign provisions instead of the forum ones, provisions that may be considerably different from the forum ones. Nevertheless, the application of the public policy exception is not welcomed in all those cases. For instance, in Harding v Wealands, the English Court noted that the applicable law contained great 59_{Pauknerová (n 6) 41.} 60_Ibid. 61_{Mills (n 25) 208.} 62_{Cuniberti (n 56) 143.} 63_{McClean (n 20 )72.}

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differences in respect of the method of calculation of damages than those provided for by the English forum law; however, it did not retain the employment of the public policy exception, as those different rules were not contrary to English fundamental values.64 In KXL v Murphy & Anor, the High Court was faced with a claim to disregard the application of a provision of lex causae, i.e. Ugandan law, as being contrary to the English public policy.65 As a consequence of assaults committed on them in Uganda, the injured parties filed claims for damages. The defendants raised a defense based on the application of Ugandan Limitation Act 1959, according to which the statute of limitation of three years was fulfilled and, thus, the claims were statute barred. Nevertheless, the claimants argued that the provisions of Ugandan law are contrary to the English public policy, as they do not provide for an extension of time as the one provided for by the English Limitation Act of 1980.66 The judge ruled that it would be a mistake in this particular case to agree that the application of the Ugandan Limitation Act is contrary to public policy, since, after conducting an analysis on important case law and other sources of authority, it does not contradict an English ‘fundamental principle of justice’.67 The judge invoked the Durham v. T&N plc case, where it was stated that simply because a ‘foreign limitation provision is less generous than a comparable English provision in force at the time’, it does not make it contrary to English public policy.68 Moreover, it would affect the system of private international law since its scope is to ‘fulfill foreign rights and not to destroy them.’69_{The judge also looked at the Connelly v RTZ Corp plc case, where}

it was decided that the ‘absence of any escape clause such as the one in section 33 of the 1980 Act does not make the foreign law in any way contrary to the English public policy’.70 He also argued that the fundamental English principle with which the foreign law is in conflict ‘must be clearly identifiable’, and it must not rely on the personal belief of the judge, but arise with clarity from a fundamental rule in relation to either the

64_{Harding v Wealands (2004) EWHC 1957 (QB), cited by Mcclean (n 20 ) 72.} 65_{Kxl & Others v Murphy & Anor [2016] EWHC 3102 (QB).}

66_{Section 33 of the Limitation Act 1980 empowers the judge to make ‘discretionary exclusion of the time}

limit for actions in respect of personal injuries or death’, after an analysis is conducted on the specificities of the case at hand and provided that certain conditions are met.

67_{Kxl v Murphy (n 65) para 53.}

68_{Durham v. T & N plc (CA 1 May 1996 unreported).} 69_{Kxl v Murphy (n 65) para 45 (ii).}

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limitation statute, or another public policy rule.71_{It must be, in this respect, ‘manifestly}

incompatible’ with the English public policy.72

It can be quite a difficult challenge finding English case law regarding the application of the public policy exception in the realm of conflicts of laws. One of the main reasons for this is the fact the English courts have been more prone to applying their own national law in matters where this exception is mostly invoked in other European countries, such as family proceedings involving divorce matters, the care and adoption of children etc.73 In this way, it can be considered that the English concept of public policy has ‘far less prominence’ than that of others states;74 for instance, France, as we will later see.

Considering that there are not so many cases that involve the application of the public policy exception in the sphere of conflicts of laws, we are rather forced to turn to the English doctrine to have a clearer picture of the areas in which the concept may be invoked. According to the estimation that has been undertaken in the English doctrine, the public policy exception is more prone to be successfully invoked when three elements are satisfied, namely (a) when there is a substantial connection between the dispute and the forum state; (b) when the affected forum provision is fundamentally valuable for the English community; and (c) when the infringement of the provision is significant.75 For instance, in a case,76 it was confirmed that in order to apply the English rules on public policy to a particular contract, it must be proven that between the agreement and the state a significant connection had already been established.77 On the contrary, if the three ‘dimensions of public policy’ manifest the opposite features, the chances of blocking the application of the foreign law are much slimmer.78 Thus, in practice, they can be of great assistance to the English courts to muddle through when faced with the fluctuating nature of the public policy exception.79 Even if the English courts may not always closely

71_{Kxl v Murphy (n 65) para 45 (iv).} 72_Ibid.

73_{McClean (n 20 ) 72; check for more examples.} 74_Ibid.

75_{Mills (n 25) 219.}

76_{Addison v Brown[1954] 2 AII ER 513; 1 WLR 779; see also Trendtex Trading Corp v Credit Suisse,}

[1982] A.C. 679.

77_{Fawcett, J., Carruthers, M. J., Cheshire, North & Fawcett: Private International Law, Fourteenth Edition,}

Oxford University Press, 2008, 142.

78_{Mills (n 25) 219.} 79_Ibid.

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examine these criteria, the present analysis is still relevant because it presents the general scheme that the courts should abide by in practice.80 The importance of drawing these kind of boundaries can be recognized from the fact that public policy should not merely become a disguise which would enhance the circumvention of the foreign rules at the extent of the ‘superior’ forum ones.81 Accordingly, the public policy exception should be invoked only in cases where the fact that the public order of the forum is affected becomes indisputable.82 In Kuwait Airways Corp v Israeli Airways Co, Lord Nicholls asserted that domestic courts should be circumspect in using their residual power to disregard a foreign law from application for being contrary to basic principles of ‘justice and fairness’ which are fundamental values comprised by the English public policy.83 In the case it was mentioned that the core idea of the conflicts of laws’ jurisprudence is the ‘just disposal of proceedings having a foreign element.’84

In reality, the factual surroundings that have to be investigated by the court do not solely represent an interrelationship issue with the forum state, but also an issue attached to the reciprocity of the divergent values involved in each case.85 In a case, the English court held that recognizing a particular Nazi law regarding the possession of private property by Jewish persons would amount to a ‘grave infringement of human rights’ that the local courts cannot ignore and must be rejected. 86 However, the protection of the principle of justice and fairness, which was discussed in the above-mentioned case, must not be offered solely when human rights are at stake because in this way other fundamental values would be left out.87 This is why a case-by-case approach is necessary. The judge must look at the detail that makes the foreign law unacceptable to the forum state in that particular case. For example, one has to distinguish between the case of a foreign decree that seizes private property, which evidently is not contrary to public policy and the opposing situation of a ‘penal’ decree that is specifically aimed against the property of a

80_{For a more detailed analysis see Mills (n 25).} 81_{Id 235-236.}

83_{Kuwait Airways Corp v Israeli Airways Co [2002] UKHL 19.}

84_Ibid.

85_{Blom (n 9) 382.}

86_{Buckley L.J. [1973] Ch. 264, 273 in Oppenheimer v Cattermole [1976] AC 249.}

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particular individual/company or a person of a certain race, which requires the application of the public policy exception.88

To conclude, in the English legal system it is crucial to examine the case law in order to have a comprehensive view on the application of the public policy exception. Nevertheless, one cannot ignore the importance of the doctrine as it may offer some guidance, as seen in the preceding analysis. One of the most essential aspects to be mentioned is the fact that there is hardly any recent case on the employment of the public policy exception in PIL, this leading to a enhanced role of the specialized literature.

2.2 France

2.2.1. Historical overview

The exact period of the emergence of the public policy exception in France is inconclusive. The same can be affirmed with regard to the specific content of the concept. Nonetheless, following the influence of various French scholars in the gradual evolution of the concept, the French doctrine refers to a few achievements in the history of the private international law.

In the XIIth_{century, the French judges used to apply the principle of the custom that}

would appear to be ‘superior and more profitable’ (‘quae potior et utilior videtur’).89 In this setting, individuals of different origins would invoke different practices from distinct regions.90 Thus, in a conflictual situation as such, the judges needed a kind of scale or a norm that would help them deliver a judgment whenever they were supposed to weigh in the different customs invoked before them. If we advance to the contemporary view, we will see that the French literature advocated that in the context of the modern ordre public concept, the position taken by the judge cannot be easily foreseen.91 Therefore, the current notion is sometimes perceived with relative reticence.92 In the XIVth century, Bartole took a step further and made the distinction between ‘odious’ and ‘favorable’ statutes with

89_{Batiffol, H., Lagarde, P., Droit international privé, ed. a VIII-a, vol. I., 1993, 567.} 90_Ibid.

91_{Mayer, Heuzé, (n 3) 153.} 92_Ibid.

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the former only being valid in the district where it was originally issued.93_{On the other}

hand, a ‘favorable statute’ can be said to be characterized by the feature of ubiquity since it could be invoked irrespective of a certain territory or region. Hence, in practice, ‘favorable statutes’ were linked to the specific good or person, those being extraterritorial, whereas the ‘odious’ ones were attached to a definite territory, these ones being essentially territorial. All these breakthroughs are mentioned by the French doctrine with the aim of displaying the importance of the little steps taken in the past, throughout a span within which the public policy exception was non-existent. Nevertheless, they indeed proved to be of considerable aid for the conceptualization of the modern concept.

2.2.2. Meaning

In the realm of conflicts of laws, the ordre public exception is that particular technique through which the normal foreign law is removed from its operation by reason of being irreconcilable with forum law as a result of its unjust content or when its outcome would be firmly contradictory to the fundamental values of the legislative policies of the forum state.94, 95 In practice, the notion of public policy can be identified as an instrument that

excludes from application the foreign law in cases in which it is contradictory to the fundamental values comprised by the concept of ordre public of the forum. ‘The postulate of private international law’ is indeed the essence of the rules of conflict of laws.96_In

other words, this can be explained by fact that the forum is willing to accept decisions different from the ones that it would reach if the judge were to rule according to its own law. 97

In France, the concept of ‘public policy’ was used, for the first time in a statute, when the French Civil Code was enacted.98 However, it is important to stress that the French Civil

93_{Battifol, Lagarde (n 89) 568.} 94_{Mayer, Heuzé (n 3) 281.}

95_{In Battifol, Lagarde (n 89) 567, there is a rather different perspective which implies the fact that in the}

context of a conflict of laws, the law that should be retained is the ‘best law’, or, more accurately, the one that renders the most satisfactory solution in the case at hand.

96_{Mayer, Heuzé (n 3) 152.} 97_Ibid.

98_{Code Civil Français 1804, art.3. Other countries from the Romanic group were inspired by this particular}

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Code referred only to the ordre public interne, which has to be distinguished from ordre public international,99 namely the public policy exception in the PIL context or, how other scholars refer to it, ordre public externe.100 The former is the result of legislation and prescribes certain limitations, which courts must abide by when considering acts or causes of action incompatible with the public order of the forum, while the latter comes into play as a result of judicial interpretation.101 The concept of ordre public international is less strict than that of the ordre public interne, in the sense that its sphere of application is narrower. While the ordre public interne may prohibit certain acts or actions as being against the law, the ordre public international may embrace them, or even recommend them. Such was the case decided by the Cour de Cassation in Arrêt Messageries-Maritimes,102 where, at the time, a specific type of clause, clause valeur-or,103 was prohibited according to the ordre public interne, but accepted according to the ordre international.

We believe that this premise is important since the domestic public policy notion is influenced by national cultural, social, or political particularities. By contrast, the international public policy can only refer to those principles, which were regarded as essentially prominent at national level, for instance universal human rights that are considered important for the French community. Therefore, it is important to stress that only the setting in which international public policy functions makes this concept genuinely ‘international’.104_{Nonetheless, its components are part of the public policy of}

each nation105 and it applies in the context of private international law relations.106

In the French literature, the concept of ordre public international was portrayed along with its specific features that confer originality to the notion, namely the vagueness of its content, as well as the relativity and the actuality of the concept.107 Following the vague character of the ordre public international, all the legislative attempts to define the

99_{Husserl, G., Public Policy and Ordre Public, Virginia Law Review 25, no. 1, 1938, 38.} 100_{Murphy (n 2) 596.}

101_Ibid.

102_{C.civ, 27 Juin 1950, Arrêt Messageries-Maritimes, J.C.P. 1950.II.5812 (note J. Ph. Lévy).}

103_{This is the equivalent of a gold clause inserted into a contract where the debtor’s obligation is to pay his}

debt in gold, or in money at the value of the gold at the time he performs his obligation.

104_{Struycken (n 17) 396.} 105_Ibid.

106_{Kitic (n 22) 76.} 107_Ibid.

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concept were ineffectual, so the France judges kept the main role in interpreting the public policy exception.108 Moreover, the judges can exceptionally apply the solutions from the jurisprudence of the courts provided that they are sufficiently connected to the case at hand.109 Furthermore, this ambiguity that dwells around the concept is not solely caused by reason of its imprecise content, but also because of the different interpretations that can be granted upon studying its application.110 According to the feature of relativity, the content of the ordre public international is also shaped by the continuous modifications regarding what ideas and principles are considered fundamental or not. These alterations are reflected in the present erratic nature of the concept, since this varies over time.111 For instance, until 1884, the foreign laws, which admitted divorces, were considered in France against the ordre public, this being a result of the ideas and conceptions about marriage at that time, which is not the case in the present.112

Finally, pursuant to the principle of actuality, it has been established that the stage when the foreign law is examined in order to apply it to the case at hand is that when the judge rules over the application of the foreign law.113 This is the consequence of the fact that the rendered decision must not affect the public opinion and the legislative policies of the lex fori.114 For example, this can happen if the foreign law is examined at the particular moment when the decision is taken.115 Therefore, one can observe the French doctrine’s approach, which tries to theorize about the concept and develop its characteristics in order to attain a more comprehensive definition. This is fostered by the fact that, in France, private international rules are not yet codified in a comprehensive way.

2.2.3. Mechanism

Defining the notion of ordre public is a more theoretical task. However, a more practical issue is that of knowing the specific steps that have to be fulfilled once the need of

108_{Kitic (n 22) 76-77.} 109_{Id 77.}

110_{Niboyet, M. L., de Geouffre de la Pradelle, G., Droit International Privé, LGDJ, 2007, 222.} 111_{Kitic (n 22) 77.}

112_Ibid. 113_{Id 78.}

114_{Mayer, Heuzé (n 3) 154.}

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employing the public policy exception arises. The reasoning that is exercised by each French judge encompasses several steps: first, the judge has to determine the applicable law which was referred to by the particular conflict of laws rule, then he must verify if the foreign applicable law is contrary to the public policy of the forum state, and, finally, in case of an affirmative answer, the judge will withdraw from application the foreign law and will replace it with the lex fori.116 For instance, in 2013, the Cour de Cassation, in its decision, underlined the importance of the task that the judge has, in the sense that he needs to carry out a careful and in-depth analysis on the content of the foreign law with the purpose of revealing if it infringes the public policy of the forum and the extent of the infringement.117 Thus, the removal of the particular provisions that are against the public policy of the forum can intervene only after such an investigation. Considering the above, we can affirm that the foreign law has to fulfill a prerequisite condition, namely to be consistent with the French ordre public international.118

Having in mind the mechanism of the concept of ordre public, it is important to determine to which set of rules does the judge refer when examining whether the foreign law infringes the ordre public of the lex fori; either the provisions that apply when the legal relation arose between the parties, or those in force when the proceedings in the state of the forum started, or those in force when the judge renders his decision on the case. In order to avoid a potentially erroneous judgment, considering the erratic nature of the public policy, as it was argued in the doctrine, it is important to verify the provisions of the foreign law at the moment the judge effectively rules on the application of the foreign law and renders a decision.119 This is also a consequence of the feature of relativity of the ordre public, which emphasizes the continuous change of the content of the public policy over time and the importance of knowing which provisions the judge of the forum needs to consider, as different decisions may result from the application of rules from different moments, as mentioned above.

116_{Mayer, Heuzé (n 3) 152.}

117_{Civ. 1}re_{, 13 février 2013, n}o _{11-28.259, cited by Henry, L.C., L’essentiel du Droit international privé, ed.}

6, Gualino, 2017, 61.

118_{Kitic (n 22) 76.} 119_{Henry (n 117) 63.}

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After examining the particular steps that the French judge has to carry out in order to apply the ordre public exception, the next natural phase will be to focus on studying the effects of such application.

2.2.4. Effects

In practice, two consequences should be noted in case of the intervention of the ordre public exception in a relationship where a conflict of laws is involved: the displacement of the foreign law from application, in the particular circumstances, and its substitution with the French law.120 In this sense, in the French doctrine, there is a unanimous agreement on the ‘double effect’ of the public policy exception.121 In the first stage, the negative effect of the public policy exception intervenes and consists in removing the foreign law from application as being against the public policy of the forum, and then, the positive effect, which entails that the void left after the displacement of the foreign law is substituted by another law, more precisely, the forum law.122 These two steps are inherently connected to each other and both materialize in all cases where the public policy is applied.123

Nevertheless, when the French law applies in view of the positive effect of the ordre public exception, there is a main legal question that needs to be answered; namely, to what extent the forum law replaces the foreign law applicable to the case at hand. In this respect, the French case law provided an answer.124 Thus, the French law replaces the foreign applicable law to the extent that this is necessary and indispensable to protect the ordre public of the French community. However, the judge can enlarge the scope of application of the French law, in certain circumstances, for the sake of preserving the coherence of the solution.125 For instance, in affaire Patino, the judge has enlarged the application of the French law, and, as a consequence of applying the public policy

120_{Mayer, Heuzé (n 3) 152.} 121_{Henry (n 117) 63.} 122_{Mayer, Heuzé (n 3) 159.} 123_Ibid.

124_{Civ. 1}re_{, 15 mai 1963, affaire Patino.} 125_{Henry (n 117) 64.}

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exception, he has decided not only to rule on a de facto separation between the two spouses, but also on a liquidation of their matrimonial regime.126

It is important to stress that the effects of the ordre public exception can be divided between effets pleins and effets atténnués.127 This distinction was laid down in the Rivière128 decision, where the Cour de cassation stipulated that the exception applies differently depending on whether it is opposed to acquiring a right in France, or giving effect in France to an already acquired legal right, obtained in accordance with the competent foreign law. The effet plein of the ordre public is related to the acquisition of rights in France and it is much stricter than the effet atténué, which concerns rights already acquired in another jurisdiction, being in this sense more easily accepted in France.129 The Rivière decision concerned a recognition case, being however relevant in respect of providing light on the distinctive nature of the effects of the ordre public. It referred to a mutually consented divorce which was not possible in France as it was against the law, while had it been obtained on the territory of another state, the Court would have recognized its effects on the territory of France considering that it derived from a lawful and competent foreign decision. Thus, as opposed to the English approach, the French doctrine offers a more detailed manner of analyzing the many distinctive circumstances in which the public policy can be applied and the different effects that can generate, according to each case.

In order to understand the practical approach of the French legal system, this thesis will further discuss not only the case law, but also the specific perspective of the French judges.

126_{The two spouses introduced a claim before the French court. The French conflict rule sent to the law of}

nationality of the parties. The two were of Bolivian nationality. According to the Bolivian rule of conflict of law, the divorce is possible only if it is accepted by the law where the celebration of the marriage took place, namely Spanish law. At the time, Spanish law did not permit a divorce between the parties, only a de

facto separation. The Cour de Cassation has decided the de facto separation of the spouses. Nevertheless,

for the sake of safeguarding a coherent decision, it has also decided to liquidate their matrimonial regime, i.e. to divorce them. This was in accordance with the French ordre public, which prohibited maintaining the parties’ matrimonial regime against their own will.

127_{Kitic (n 22) 79-80.}

128_{Civ. 1}re_{, 17 avril 1953, J.C.P. 1953. II. 7863, note Buchet, cited by H. Batiffol, P. Lagarde, Droit}

international privé, ed. a VIII-a, vol. I, 1993.

129_{Henry (n 117) 64. This was also confirmed by the Cour de Cassation in a later case, arrêt Chemouni, 28}

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2.2.5. Case law

In the French legal system, the concept of ordre public is determined on a case-by-case basis, the judge having the task of examining the concept in a concrete manner, since there are no predetermined criteria in knowing whether the foreign law will be evicted as being contrary to the public policy.130 In this respect, it is imperative to conduct an analysis on the French jurisprudence in order to see how the judges apply the concept in practice and the areas of law in which the concept of ordre public is mostly invoked. This perspective of analyzing in concreto the concept of ordre public has been recently sustained by the Cour de Cassation in 2015.131 This decision concerns a divorce matter where the German law was applicable, according to the French rule of conflict of law. The issue was whether the clause of excluding any compensatory allowance invoked by the parties, which was allowed by the German law, was indeed against the French public policy. Thus, in this matter, the judge could not have anticipated the possibility of applying the ordre public, considering that only when he is confronted with the application of the foreign law in a certain matter, can he acknowledge that it is, in fact, incompatible with the forum law.132 This manner of appreciating in concreto whether the exception of ordre public is applicable or not, comes also as a consequence of the erratic character of the substance of the public policy exception boosted by its evolution in time and space.133_{French courts are more prone to make use of the ordre public exception in}

cases involving family proceedings.134 Nevertheless, it has been argued that the public policy exception should not be excluded from the start from any other field of law; for instance, the concept of ordre public can be applied even in procedural matters.135

In practice, one of the domains in which the ordre public exception is invoked is that which concerns fundamental principles of civilization, such as moral, political, social and economical ones.136 In a landmark case, Lautour, the Cour de Cassation has tried to define these principles as being “those principles of universal justice which are considered

130_{Henry (n 117) 61.}

131_{Civ. 1}re_{, 8 juillet 2015, n}o_{14-17.880 cited by Henry (n 129) 61.} 132_{Henry (n 117) 61.}

133_{Niboyet, de Geouffre de la Pradelle (n 110) 224.} 134_Ibid.

135_{Id 225. The author gives the instance of when a means of proof obtained according to the foreign law}

infringes French civil procedural principles.

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by the French community as enshrining internationally absolute values.”137_{For instance,}

it was decided by the Court that it is contrary to the public policy the possibility of excluding allowances for the spouse after the divorce is finalized, according to the Moroccan law.138 This decision was later upheld by the Cour de Cassation, in 2013, where it emphasized the duty of the judge to analyze and determine in detail the procedure provided by the Moroccan law regarding the compensatory allowance in order to decide whether it is indeed contrary or not to the public policy of the forum, and in case the response is affirmative, to also analyze to what extent it infringes the lex fori.139 Moreover, it is recognized as a fundamental principle that no discrimination shall be made between men and women, and any breach of this principle is against the French public policy.140 In this respect, there are many cases in which the Cour de Cassation has decided against the Muslim unilateral spousal repudiations.141 Moreover, in a French case,142 it has been confirmed that a polygamous marriage contracted abroad by a French citizen who was already married at that time to a French woman is against the French comprehension of the ordre public international.143

The above mentioned domain also includes the principle of pacta sunt servanda, which means that while the parties are at liberty of choosing the contractual clauses according to their own will, once decided, they must abide by them. In a decision, the Cour de Cassation has decided that is is not contrary to the French public policy to deny a party the ability to introduce a claim in another court than that contractually designated by the parties.144 Nevertheless, the Court emphasized that this must be done under certain circumstances, as long as it does not concern intra-community conventions and it is not related to a pre-existing contractual relation between the parties. Regarding the punitive damages, the Cour de Cassation has decided that these are not against the French ordre public as long as they are not disproportionate.145

137_{Civ. 1}re_{, 25 mai 1948, arrêt Lautour.} 138_{Civ. 1}re_{, 28 novembre 2006, n}o_04-11520. 139_{Civ. 1}re_{, 13 février 2013, n}o_11-28.259. 140_{Henry (n 117) 62.}

141_{Civ. 1}re_{, 17 février 2004, n}o_{01-11.549; Civ. 1}re_{, 14 mars 2012, n}o_{11-11.896. In these two cases, the Court}

has found that the unilateral repudiation of the spouse is contrary to the French ordre public which comprises the principle of equality between spouses.

142_{Civ. 1}re_{, 6 juillet 1988, n}o_85-12743. 143_{Cuniberti (n 56) 142.}

144_{Civ. 1}re_{, 14 octobre 2009, n}o_08-16.369.

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Another more modern domain in which the ordre public exception intervenes is strictly related to the legislative policies of France and the means to safeguard them.146 Thus, the employment of the ordre public exception is also used as an instrument that would protect the policies of the French legislator according to the rights that are perceived as important for the community in a certain period. One example might be the French rules on the right of establishing the paternity of the child before and after 1972. While, before 1972, the French provisions did not allow this possibility of establishing the natural paternity of children, nowadays it is allowed. In 2011, the Cour de Cassation even decided that it is against French public policy the provision of the foreign law which denies the child the right of establishing his paternal filiation.147 In this case, Ivorian law was applicable, according to the conflict rule contained in article 311-14 French Civil Code, which states that the establishment of filiation is to be made in conformity with the personal law of the mother at the moment the child was born. Nevertheless, by applying articles 22 and 27 of the Ivorian Family Code, there was no possibility for the mother to establish paternal filiation when the child was born outside marriage. In this sense, the Cour de Cassation sustained the Cour d’Appel decision which ruled that the provision of the Ivorian law are against French ordre public because it deprives the child of his right to establish his paternal filiation.148

There is another example in the domain of French legislative policies, which is that of the French perspective in relation to the same sex marriages. Until 2013, the homosexual marriage between a French citizen and a foreigner, celebrated abroad, was not recognized in France as being contrary to the ordre public.149 Nevertheless, with the entrance into force of a new law on marriage,150 the legislative policy has changed and, nowadays, same sex marriages are permitted. The Cour de Cassation has decided, in 2015, that the provision of the Moroccan law which prohibits homosexual marriages, is against the French ordre public, and under the condition of same sex marriages acceptance under

146_{Henry (n 117) 62.}

147_{Civ. 1}re_{, 26 octobre 2011, n}o_09-71.369.

148_{Ibid. Another example is the French legislative policy regarding the divorce, which was not allowed}

before 1884.

149_{Henry (n 117) 62.}

A comparative analysis on the public policy exception in Private International Law

LLM European Private Law

Master Thesis