Courts may apply foreign law based on public policy and order. Some countries select which law to apply to foreign facts. The forum’s authority to block harmful legislation limits the promise to protect valid international rights. Due to ambiguity, public policy is sometimes used to make choices. Courts seldom apply public policy. Public policy’s common law roots contradict the order of the public’s legislative roots. Both oppose the vindication of rights won by invidious foreign edicts in the forum. After studying public policy and order’s history, one may investigate its typical uses, such as rejecting unlawful foreign laws, managing cases, and building a legal system.
Although court judgments involving public policy are relatively infrequent, particularly in countries with judicial systems along Anglo-American or German lines, law controversies can occur, and public policy hinders the efficient functioning of private international law. Specific claims founded in foreign law are recognized by the courts of every country that engages in international trade, while others are not. Whether domestic courts must recognize or subject effect to foreign laws has perplexed jurists and Juris prudes for over 400 years. The ancient Romans ignored disputes with foreign laws and declared that only Roman law applied to Roman citizens. Therefore, the solution is no more evident now than it was then.
As modern, independent states developed, trade and commerce eventually led to legal disputes, just as Roman hubris had done before the empire fell. To establish the fundamental guiding principles of private international law, a group of European university-based lawyers set out to do so more than 500 years ago. Instead, looking to judicial rulings, these academics advocated abstracting the concepts of international law through inference and induction. Because individual courts do not refer to academic proclamations when deciding contentious cases, it is generally accepted that the strategists failed in their quest.
Public policy consideration under Anglo-American law is made more complicated by the many characterization and qualification strategies a court may choose to exclude foreign law. Public policy choices have crystallized into law in numerous ways, including the contrast between method and content, using domicile to establish personal law, the territorial structure of criminal law, and the separation of law and politics. In cases when public order must be applied, these mechanisms allow an Anglo-American court to avoid overtly using public policy. Given the diversity of legal systems throughout the globe, the primary justification for this law is that no court is the principal of foreign method, and neither is the system proficient in it.
The rule is based on the consensus that no better option is available. When deciding whether to apply foreign law, Anglo-American courts find the procedural vs. substantive distinction marvelously pliable, and they skillfully expand or withdraw procedural categorization as they comprehend the circumstances in each instance to allow. The courts’ actions have been criticized in the past for similar reasons. Foreign penal legislation will not be enforced since it is widely established that criminal law has a territorial aspect (Maruf, 2021). Cases revolving around this problem have resulted in fines under illegal revenue laws and the standard criminal law for expropriation without compensation and lengthy deprivations of property interest. While it is generally established that criminal laws are territorial, no universally accepted criterion for determining whether or not foreign legislation is penal or criminal in nature has yet emerged.
Foreign laws that violate the morality and dignity of the forum may be rejected under private international law to avoid injustice in the evidence before the court and to influence the choice of law. Moral principles have been used to invalidate contracts for prostitution, slave ownership, and incestuous marriage. This public policy is rarely employed despite its potential utility in nullifying egregiously immoral transactions. It is defined by a series of older rulings focusing on slavery and the defense of forum sexual norms. There are three reasons why moral repugnancy is used less frequently in public policy today. One of the reasons is that changing standards of sexual morality have made some formerly taboo behaviors acceptable. Secondly, judges are more hesitant to describe the legislation of a foreign nation as barbaric and cruel. Thirdly, human slavery and degrading treatment are illegal in every country. There is no question that this role of public policy is still relevant, even though situations of moral repugnancy are exceedingly rare in current legal practice.
When political freedom and personal liberty are only abstract ideals to a substantial portion of the world’s population, no legal system can afford to risk subjecting itself to enforcing all foreign-acquired rights. Preventing injustice under the parties’ unique circumstances before the court is a second apparent public policy duty (Hoffman & Hwang, 2020). It is not that the foreign legislation at issue is invalid per se, but rather that the forum’s conflict rules will apply it harshly in this case. A few examples of this kind of public policy are being used in the United States. To prevent an unfair or immoral outcome, English judges have retained a “residual discretion,” notably in personal status disputes.
Others have argued that international law and the precedent set by previous decisions forbid this discretionary reserve. Yet, there is support in the case law for the continued use of this privilege by English courts. Residual discretion has been criticized by some who believe that when parties to a contract negotiate its terms, they do not intend to cede any discretion beyond that explicitly stated in the contract. Only the established norms for contract formation can bring the parties to an accord, though a residual discretion approach, which weighs a specific hardship more than principle, may be referred to as a general reservation.
The potential of American courts to avoid injustice is exerted more quietly in a broad approach to law, emphasizing fairness in specific situations through the concealed public policy mechanisms outlined above. In cases when foreign law is appropriate, French courts are inclined to ignore their conflict of laws regulations even if the evidence is weak (Curtis A, 2020). The coercive principle seems self-evident if individuals base their reasoning on ethics or the established social order. Instead of changing or updating an otherwise applicable conflict rule, the court may ignore a legal ruling made by its rules that serve the public interest.
A decision of law provision often overrides foreign law and requires that the forum’s laws be applied to the transaction because of the forum’s relationship to the subject matter. In other words, the focus of forum conflict rules is typically heightened by using public policy as a judgment of the law. The result was the making plain of a rule of conflict resolution that had been implicit earlier. It was accomplished without the imposition of any new permanent norm.
Public policy is hard to define, yet it has a legal underpinning. English and French courts first utilized public policy to force the public to reject contracts breaking morality and social order. Even while civil law countries consider public order essential to a regular dispute system, Anglo-American law has been less rigorous in defining public policy’s role. Rejecting rights earned abroad based on public policy is neither arbitrary nor hazardous as it happens within one’s self-imposed restrictions, as has been the case historically. Public policy and order public vary primarily in form.
References
Curtis A, B. (2020). 1 court, foreign affairs, and the structural constitution. In International Law in the US Legal System. Oxford University Press. Web.
Hoffman, D. A., & Hwang, C. (2020). The Social Cost of Contract. SSRN Electronic Journal. Web.
Maruf, A. (2021). Legal aspects of the environment in Indonesia: An effort to prevent environmental damage and pollution. Journal of Human Rights, Culture and Legal System, 1(1). Web.