Public Policy and Private International Law – A Comparative Guide (Elgar Comparative Guides, 2022), edited by Olaf Meyer

Public Policy and Private International Law” seeks to shed some light on a difficult and sometimes highly controversial area of the conflict of laws. Private international law proceeds from the starting point that all legal orders of the world are equal, even if they are based on wholly different values and conceptions of justice as one’s own law and produce starkly diverging results from the latter. However, this tolerance meets its limits where the result according to the foreign law is simply irreconcilable with the forum’s own conceptions of justice. This is where the public policy exception applies as a national backstop and ultimately prevents the foreign law prevailing. Public policy denotes in other words the last bastion of defence; a line which we draw in the sand and say: This far and no further!

While this exception runs contrary to the ideal of private international law justice and has given public policy a bad image and the reputation of a “troublemaker”, such a safety net is indispensable for the system to function. The confidence in foreign legal orders is not unlimited and neither will it ever be, so long as legal rules around the world differ so fundamentally. This is why the public policy exception is to this day firmly anchored in all private international law statutes worldwide. It appears as though such a kill switch is absolutely necessary to allow even the possibility of a foreign law applying at all. No autonomous legal order will issue a blank cheque to all foreign legal orders without reserving to itself the possibility to correctively intervene in individual cases. Public policy thus opens an escape route from the value-neutral system of private international law, but without this escape route there would be no willingness for the application of foreign rules in the first place. This makes the public policy exception in a quite idiosyncratic way both contrary and intrinsic to the system at the same time.

Where exactly this line of defence runs is decided by each legal order for itself. Every country has its own catalogue of values which it regards as non-negotiable, even in relations with other states. The concept itself is substantively very vague and general, and its contours get more blurred the closer one tries to look. For this reason alone, public policy has been labelled as “quicksand”, as a “peat bog” or as “the most elastic of all rubber clauses”. The language of public policy is rich with such metaphors. Whether something is contrary to public policy is clearly something more readily felt than expressed.

One may be inclined to dismiss these problems with reference to the limited significance of the public policy exception in legal practice. We indeed repeatedly hear the warning that public policy is to be used only very sparingly, that it is an exception which is reserved solely for extreme cases. The retreat of public policy is underpinned by an increasing availability of alternative regulatory mechanisms which have over time assumed more and more of its original functions. In particular, the overriding mandatory provisions (“Eingriffsnormen” or “loi d’application immédiate”) have emancipated from the original “ordre public positif” to an independent legal institution with their own conditions of application.

Despite this apparent retreat one should not prematurely declare public policy obsolete. The concept has already proven its capacity to change in the past. As a special rule with very flexible contours, public policy has in every era always occupied precisely that gap which private international law at the time required it to. In recent times we have again seen signs for a new change of meaning in, and thereby increasing significance of, public policy. Private international law is increasingly loaded with political aims, in particular the effective enforcement of standards for the protection of weaker parties. This can also not remain without consequence for the application of public policy.

One such example is the liberalisation of same sex relationships. Many states now allow homosexual couples to live together in the form of a civil partnership or even in a genuine marriage. This progress is not however happening at the same pace across the whole world, and while in recent years in many countries family law structures in this area were in a sense created anew to reflect these developments, conservative states hold firm to the traditional view of marriage. If a homosexual couple now legally marries in one state, it is by no means certain that this marriage will be recognized in every other state. This can lead to friction not only with respect to the question of the validity of the marriage as such, but also regarding many further related aspects, from the right to carry a common surname to maintenance and succession rights, and even up to the question of whether a same sex married couple can adopt a child.

Technological advance serves as a second example. Modern science enables us today to realise things which in the not-too-distant past belonged to the realms of science fiction. These new technical possibilities sometimes come into conflict with fundamental ethical values. The most familiar example currently is surrogacy. Whereas many countries have placed strict legal limits on the procreation of human life in test tubes, which may even extend to genetic manipulation of certain characteristics such as the gender of the child, in other places much more is allowed. These national differences in the regulation of surrogacy have provoked a real “reproductive tourism” of couples wanting children. When the family returns to their home country, public policy plays an important role in defining the legal familial relationships of the child so conceived.

A third example that can be named is the changed role of women in society. Legal equality between men and women has made huge progress over recent decades and overtly discriminatory rules have in many places completely vanished from the law. Conflicts remain with legal orders which now as previously treat women differently to men, in particularly with Islam influenced law, which for example in succession law only allows female descendants half of that which male descendants receive from an estate. The refugee movements of recent years will lead to courts increasingly having to deal with such cases. These questions will foreseeably constitute a considerable portion of the cases in which public policy is applied.

These examples are of course just a few of the societal issues where public policy might come into play; the list could be continued indefinitely. However, what would fall under the public policy of another state used to be hardly possible to predict with certainty from abroad. Such value questions go to the heart of social, cultural, economic or religious customs of the foreign state and are therefore much more difficult to determine than the substantive content of a specific written foreign legal rule.

For the first time, this book now provides a systematic jurisdictional coverage of the public policy exception in the context of private international law. It combines reports from 16 countries spanning three continents, a separate chapter on European public policy and a comparative report with a deeper analysis of some of the main findings. It is hoped that it will be of value to practitioners navigating their way through this complex interaction. Academics and policy makers with a special interest in private international law may also find this a platform for further research.

Posted by Olaf Meyer (Frankfurt University of Applied Sciences)