1

A FLEXIBLE SYSTEM IN FLUX: ON THE

REALIGNMENT OF PUBLIC POLICY

Olaf Meyer1

A. PUBLIC POLICY – ORIGIN AND ONGOING PROTECTED1-038

DEVELOPMENT1-001 1. International Sources of Public Policy 1-038
1. A Shield Against Unfair Foreign Rules 1-001 2. Supranational Public Policy? 1-046
2. A Legal Institution in Constant Change  1-010 (a) European Public Policy 1-047
3. New Roles for Public Policy  1-018 (b) Transnational Public Policy 1-049
B. THE RELATIVITY OF PUBLIC POLICY 1-024 D. THE SEVERITY OF THE BREACH  1-053
1. Between Respectful, Reluctant Deference 1. The Hague Formula 1-053
and Unlimited Jurisdiction to Intervene 1-024 2. Special Reservation Clauses 1-059
2. Lists  1-030 3. Other Absolute Values 1-062
3. Special Reservation Clauses  1-031 E. THE PROXIMITY OF THE FORUM STATE 1-067
4. Relativity as a Flexible System 1-034 F. LOOKING FORWARD 1-076
C. THE IMPORTANCE OF THE RULE TO BE

A. PUBLIC POLICY – ORIGIN AND ONGOING DEVELOPMENT

1. A Shield Against Unfair Foreign Rules

In the traditional view, private international law tries to find the “best” law for each case. By 1-001
that is meant not the best law in a qualitative sense, i.e. the most just or most modern legal
order. Rather, one should determine the best law in a territorial sense, and that is the law of the
state with which the legal relationship is most closely connected, or stated differently, where it
has its seat.2

Qualitative considerations are, in principle, irrelevant to this choice. The private international 1-002
lawyer 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

1 Professor, Frankfurt University of Applied Sciences.

2 G Kegel/K Schurig, Internationales Privatrecht (9th edn, Beck 2004) § 2 I.

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 PUBLIC POLICY AND PRIVATE INTERNATIONAL LAW

starkly diverging results from the latter. Such differences are, in principle, to be respected.
Private international law is blind to the result to which the applicable substantive law leads.

1-003 The tolerance for different kinds of solutions meets its limits, however, where the result accord-
ing to the foreign law is simply irreconcilable with the forum’s own conceptions of justice.
This is where the public policy exception applies and ultimately prevents the foreign law from
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!

1-004 At first glance this runs contrary to the ideal of private international law justice. It shatters the
dogma of the equal status of the substantive laws of all states, considerations of substantive
justice can override the closest territorial connection as the definitive characteristic for deter-
mining the applicable law. This has given public policy a bad image and the reputation of a
“troublemaker”.3

1-005 But such a safety net is surely indispensable for the system to function. “The gate which leads
abroad also has a latch, which if necessary can lock it.”4 The confidence in foreign legal orders is
not unlimited nor will it ever be, as 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.5 It appears as though such a kill switch is absolutely necessary to allow
even the possibility of a foreign law applying at all.6 No autonomous legislature will issue
a blank cheque to all foreign legal orders without reserving the possibility of correctively inter-
vening in individual cases. Public policy thus opens up an escape route from the value-neutral
system of private international law, but without this escape route there would be no willingness
to apply foreign rules in the first place. This makes public policy, in a quite idiosyncratic way,
both contrary and intrinsic to the system at the same time.

1-006 Where exactly this line of defence runs is decided by each legal order autonomously. Every
country has its own catalogue of values which it regards as non-negotiable, even in relations
with other states. This applies even in the relations between the member states of the EU, where
large parts of private international law have been fully harmonized in recent years. Though of

3 M Ferid, Internationales Privatrecht (3rd edn, Beck 1986) para. 3-13 (“Störenfried”); H Battifol/P Lagarde, Droit inter-
national privé, Vol. I (8th edn, Librarie Générale de Droit et de Jurisprudence 1993), 569 (“un élément perturbateur”);
S Francq, ‘Public Policy and Overriding Mandatory Rules as Mirrors of the EU System of Thought and Integration’
in J von Hein/EM Kieninger/G Rühl (eds), How European is European Private International Law? (Intersentia 2019)
305, 308 (“the ‘odd’ part of private international law”); TM de Boer, ‘Unwelcome Foreign Law – Public Policy and
Other Means to Protect the Fundamental Values and Public Interests of the European Community’ in A Malatesta/S
Bariatti/F Pocar (eds), The External Dimension of EC Private International Law in Family and Succession Matters
(CEDAM 2008) 295 (“a somewhat ignominious reputation”); G Kegel/K Schurig (n 2) § 16 II (“ein zwar nützliches,
aber ungeliebtes Kind”/ “a useful, but unloved child”).
4 L Raape, Internationales Privatrecht (3rd edn, Verlag für Rechtswissenschaft 1950) 63.
5 C von Bar/P Mankowski, Internationales Privatrecht, Vol. 1 (Beck 2003) § 7 para. 258; FM Wilke, A Conceptual Analysis
of European Private International Law (Intersentia 2019) 256; K Siehr, ‘General Problems of Private International Law
in Modern Codifications’ (2005) YbPIL VII 17, 53; L Fumagalli, ‘EC Private International Law and the Public Policy
Exception – Modern Features of a Traditional Concept’ (2004) VI YbPIL 171.
6 Von Bar/Mankowski (n 5) § 7 para. 258.

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 A FLEXIBLE SYSTEM IN FLUX: ON THE REALIGNMENT OF PUBLIC POLICY

course all EU Regulations in this area do contain a public policy exception,7 this always refers
to “the public policy of the forum”. Although EU law does thereby provide a certain framework
for the public policy exception, the substantive meaning of the clause is left to the member
states to flesh out.8 Thus there remains, for example, a Dutch, Spanish, Bulgarian or Irish
public policy. This is the unharmonized part of private international law.

The concept itself is substantively very vague and its contours become more blurred the closer 1-007
one tries to look. For this reason alone, public policy has been labelled as: “quicksand”,9 as a
“peat bog”10 or as “the most elastic of all rubber clauses”.11 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.

In practice this elusiveness leads to difficulties in both directions: If private international law 1-008
determines that a foreign law applies, the judge must not only define the canon of values of
their own legal order; they must also examine very precisely whether the lex causae is, in fact,
in irreconcilable contradiction with said values in the present case. Whether this is so, however,
can only be decided once the consequences of applying the foreign law are completely clear.
What at first glance appears as a slap in the face of justice can, on closer inspection, be revealed
to be nothing more than a technical peculiarity, such as when the apparent disadvantage of
a party according to a foreign law is balanced out elsewhere in the law.

Even more difficult than administering one’s own public policy is the task of knowing a foreign 1-009
public policy. Whoever is contemplating a legal act which might subsequently have an effect
abroad, cannot rest reassured that the courts there would, in principle, apply a foreign law
according to their own private international law; even here, one must also consider the possi-
bility that the public policy of these courts could yet prevent the law which should apply from
in fact being applied. It is difficult to predict with any certainty what will fall under the public
policy of another state. 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. Thus, it can be, for example, that
a testamentary contract, an adoption of an adult, or a same-sex marriage can, despite careful
planning, later turn out to be without effect abroad.

7 Art. 21 Rome I Regulation; Art. 26 Rome II Regulation; Art. 12 Rome III Regulation; Art. 35 EU Succession
Regulation; Art. 31 EU Matrimonial Property Regulation; Art. 31 EU Registered Partnership Regulation. See further-
more Art. 13 Hague Maintenance Protocol.
8 Case C-7/98 Krombach v Bamberski [2000] ECR I-01935 para. 22; Case C-38/98 Renault v Maxicar [2000] ECR
I-02973, para. 27; K Schmalenbach, ‘Ordre public-Vorbehalte im Europäischen Unionsrecht’ in T Boric/B Lurger/P
Schwarzenegger/U Terlitza (eds), Öffnung und Wandel – Die internationale Dimension des Rechts II (LexisNexis 2011)
691, 695.
9 Judge Pilon, Cass. 21.4.1931, (1932) 59 Clunet 157 (“les sables mouvants”).
10 HJ Sonnenberger, ‘Wandlungen und Perspektiven des familienrechtlichen ordre public’ in R Freitag/S Leible/H
Sippek/U Wanitzek (eds), Internationales Familienrecht für das 21. Jahrhundert – Festschrift für Ulrich Spellenberg (Sellier
2006) 29.
11 AP Belov, ‘Publichnyi poriadok: zakonodatelstvo, doktrina, sudebnaia praktika’ (1996) Pravo i ekonomika No. 19/20,
23 (cited in A Laptew, ‘Abschaffung der anerkennungsrechtlichen ordre public-Kontrolle in Osteuropa: Vorbild für die
EU?’ (2004) IPRax 495).

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 PUBLIC POLICY AND PRIVATE INTERNATIONAL LAW

2. A Legal Institution in Constant Change

1-010 At this point one may be inclined to dismiss the aforementioned problems with reference to the
limited significance of the public policy exception in legal practice. One does 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.12 This testimony also pervades all country reports in
this volume.

1-011 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.13 In par-
ticular the overriding mandatory provisions (“Eingriffsnormen” or “loi de police” or “loi d’appli-
cation immédiate”) have emancipated from the original “ordre public positif” to an independent
legal institution with their own conditions of application.14 A public policy test can necessarily
only be undertaken as a final step, i.e. once the applicable foreign law has been determined and
its substance clarified. In contrast, the overriding mandatory provisions appear much earlier in
the scheme of things. They are intended to apply unconditionally, before a conflict of laws is
even established, and their regulatory content prevails irrespective of whichever national law
otherwise applies.15

1-012 But overriding mandatory provisions are not the only example of private international law
rules which assume a similarly protective function as the public policy exception. There is an
increasing prevalence of specific conflicts of laws rules for politically sensitive areas;16 in other
areas the legislature uses alternative additional rules, which provide a more acceptable solution
for the party worthy of protection than under the otherwise appliable national law.17 In such
cases there is then regularly ultimately no problem with a possible breach of public policy. One
should also not forget the extension of party autonomy in numerous areas, where previously
a choice of law was not permissible. If namely the parties have validly and without force agreed
on the application of a particular legal order, it appears less justified to ignore this choice by
reference to contrary public policy.

12 M Keller/K Siehr, Allgemeine Lehren des internationalen Privatrechts (Schulthess 1986) § 42 III 4; von Bar/Mankowski
(n 5) § 7 para. 258; J von Hein, in Münchener Kommentar zum BGB, vol. 11: Artt. 1-26 IPR I (7th edn, Beck 2018) Art.
6 EGBGB para. 13; G Hohloch, ‘Internationales Erbrecht und ordre public – Stand, Bedeutung und Perspektive’ in R
Stürner/H Matsumoto/W Lüke/M Deguchi (eds), Festschrift für Dieter Leipold zum 70. Geburtstag (Mohr Siebeck 2009)
997, 1000.
13 E Jayme, Methoden der Konkretisierung des ordre public im Internationalen Privatrecht (CF Müller 1989) 19ff.; von Hein (n
12) Art. 6 EGBGB para. 16ff.
14 J Basedow, ‘Die Verselbständigung des europäischen ordre public’ in M Coester/D Martiny/KA Prinz von Sachsen
Gessaphe (eds), Privatrecht in Europa – Vielfalt, Kollision, Kooperation, Festschrift für Hans-Jürgen Sonnenberger zum 70.
Geburtstag (Beck 2004) 291, 297f.; F Berner, Kollisionsrecht im Spannungsfeld von Kollisionsnormen, Hoheitsinteressen und
wohlerworbenen Rechten (Mohr Siebeck 2017) 96.
15 M Wilderspin, ‘Overriding Mandatory Provisions’ in J Basedow/G Rühl/F Ferrari/P de Miguel Asensio (eds),
Encyclopedia of Private International Law, Vol. 3 (Edward Elgar 2017) 1330f.; von Bar/Mankowski (n 5) § 7 para. 275.
16 For instance, according to Art. 13 Rome III Regulation a Member State whose law does not deem the marriage in
question valid for the purposes of divorce proceedings is not obliged to pronounce a divorce.
17 This is the means chosen by the European legislator, e.g. in Art. 27 Succession Regulation on the formal validity of
dispositions of property upon death (favor testamenti).

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 A FLEXIBLE SYSTEM IN FLUX: ON THE REALIGNMENT OF PUBLIC POLICY

Despite this apparent retreat one should not prematurely declare public policy obsolete. The 1-013
concept has already proven its capacity to change in the past. As a special rule with very flex-
ible contours, public policy has in every era always occupied precisely that gap which private
international law at the time required it to. In other words, every era had its own public policy
exception.18

One can trace the discussion as such back to the time of the Roman law scholars of the thir- 1-014
teenth and fourteenth centuries, as Bartolus decided the famous primogeniture case and had to
consider the scope of the statuta odiosa of the foreign law.19 In more modern times, the question
as to what extent we should consider foreign law first appears with Savigny, who simultane-
ously recognized it as “perhaps the most difficult task in this entire discipline”.20 One should
not, however, give the venerated master too much credit, as his remarks on this are limited to
just a few lines. More precise contours were carved out by the generation after him, in Germany
above all Kahn and von Bar, in France Bartin and in Italy Mancini, from whose pen the first
statutory rule also emanated.21

Two distinct schools of thought have emerged.22 One follows the direction of Savigny, who 1-015
called for a narrow application of public policy as a rule of exception.23 In the Romanic jurisdic-
tions by contrast the view of Mancini became influential, according to which the ordine pubblico
was an additional principle of equal status, which limited the applicability of foreign law from
the outset.24 This wide understanding was able to hold in these legal orders for decades, before
it gave way to a more restrained approach. The different approaches can be explained by the
differing conflict rules. In German-speaking Europe, where the law was heavily particularized
in the nineteenth century, it was mostly the domicile of the parties which was the touchstone
for the closest connection, whereas Mancini is known to have believed it should be based on
nationality.25 The latter, however, more frequently results in the application of foreign law26 and
therefore needs a stronger counterweight.

An idea which enjoyed somewhat of a renaissance in the USA is to consider public policy 1-016
already at the point of deciding the applicable law, not merely as an escape device.27 In many

18 G Reichelt, ‘“Europäischer” ordre public im autonomen Kollisionsrecht?’ (1975) ZfRV 217, 220.
19 N Hatzimihail, ‘Bartolus and the Conflict of Laws’ (2007) 60 Revue Hellenique de Droit International 12, 27ff.;
A Spickhoff, Der ordre public im Internationalen Privatrecht (Metzner 1989) 30ff.; H Kaufmann, ‘Zur Geschichte der
internationalprivatrechtlichen Vorbehaltsklausel von den Glossatoren bis Bartolus’ in W Wilhelm (ed.), Studien zur
Europäischen Rechtsgeschichte (Vittorio Klostermann 1972) 66ff.
20 CF von Savigny, System des heutigen Römischen Rechts, Vol. 8 (Veit 1849) 32.
21 Art. 12 Ital. codice civile (1865); see also P Lagarde, ‘Public Policy’ in K Lipstein (ed.), International Encyclopedia of
Comparative Law, Vol. 3 – Private International Law (Mohr Siebeck 1986) 11–2.
22 See KH Neumayer, ‘Zur positive Funktion der kollisionsrechtlichen Vorbehaltsklausel’ in H Dölle/E von Caemmerer
(eds), Vom deutschen zum europäischen Recht – Festschrift für Hans Dölle, Vol. II (Mohr Siebeck 1963) 179ff.; A Spickhoff
(n 19) 37ff.
23 See Lagarde (n 21) 11–2.
24 See Franzina, Chapter 10 in this volume.
25 Y Nishitani, ‘Mancini, Pasquale Stanislao’ in J Basedow/G Rühl/F Ferrari/P de Miguel Asensio (eds), Encyclopedia of
Private International Law, Vol. 3 (Edward Elgar 2017) 1196.
26 T Helms, ‘Ordre public – Der Einfluss der Grund- und Menschenrechte auf das IPR’ (2017) IPRax 153, 155.
27 Further Coyle, Chapter 18 in this volume.

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US States they do not merely look for the closest geographical connection of the facts of a case
to a state, but rather more generally look for the most significant relationship. And to “better
law” belongs, of course, better policy.

1-017 It is this long development which has resulted in relative calm in the area of public policy in
recent times. Not only have new rules for conflicts of laws reduced the need to conduct a public
policy test; but political and social taboos have also been eroded, our system of values until
most recently has probably been the most liberal in our history: anything goes. This is the
state described by the reports in this volume, which state that public policy is only very seldom
applied by the courts in practice.

3. New Roles for Public Policy

1-018 In recent times we have again seen signs of a new change of meaning in, and thereby increasing
significance of, public policy.28 It is, of course, the case that state and other collective interests
in private international law today are very often protected by mandatory overriding provisions
and other instruments and are thus increasingly disappearing from the scope of application of
public policy. However, at the same time, there is also an increase in the number of cases in
which protection of the individual is determined to be one of the fundamental values of a legal
order which must be defended.29 Private international law is increasingly loaded with political
aims, in particular the effective enforcement of standards for the protection of weaker parties.30
This will not be without consequences for the application of public policy. Three examples here
should demonstrate this more closely.

1-019 First, we can consider the liberalization 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 mar-
riage.31 This progress is not happening at the same pace across the globe and, while in recent
years, in many countries family law structures have in a sense been created anew to reflect these
developments, conservative states hold firm to the traditional view of marriage.32 If a homosex-
ual 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 whether
a same-sex married couple can adopt a child.

28 Von Hein (n 12) Art. 6 EGBGB para. 18; J Kokott/W Rosch, ‘Eingriffsnormen und ordre public im Lichte der
Rom I-VO, der Rom II-VO, der EuGVVO und der InsVO’ in C Benicke/S Huber (eds), National, International,
Transnational: Harmonischer Dreiklang im Recht, Festschrift für Herbert Kronke (Gieseking 2020) 265, 266.
29 Jayme (n 13) 62.
30 P Mankowski, Interessenpolitik und europäisches Kollisionsrecht (Nomos 2011); Francq (n 3) 309.
31 D Coester-Waltjen, ‘Die Einführung der gleichgeschlechtlichen Ehe in ausgewählten Rechtsordnungen’ (2018) ZEuP
320ff.; D Looschelders, ‘Gleichgeschlechtliche Ehen im Internationalen Privat- und Verfahrensrecht’ in C Benicke/S
Huber (eds), National, International, Transnational: Harmonischer Dreiklang im Recht, Festschrift für Herbert Kronke
(Gieseking 2020) 317ff.; T Lutzi, ‘Das neue französische IPR der gleichgeschlechtlichen Ehe und der ordre public
international’ (2014) IPRax 292ff.
32 See, e.g. the country reports for Bosnia (Chapter 4), China (Chapter 5) and Hungary (Chapter 9) in this volume.

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 A FLEXIBLE SYSTEM IN FLUX: ON THE REALIGNMENT OF PUBLIC POLICY

Technological advances serve as a second example. Modern science enables us today to realize 1-020
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.33 Whereas some 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, other countries have a more relaxed
attitude.These national differences in the regulation of surrogacy have provoked a real “repro-
ductive 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.34

One can imagine such problems in the future in any number of areas, when new technologies 1-021
force us to consider whether we should oppose them for moral reasons. There are no limits to
the imagination here. Scientists in various countries right now, for example, are working on the
procreation of so-called “chimeras”, mixed genetic beings with part-human and part-animal
DNA.35 Efforts are still only at a very early stage, but should any cross-bred being ever see the
light of day, then each state will have to consider whether, irrespective of the applicable law,
it should be covered by certain minimum protection standards that apply to human beings.36

Finally, the third example that can be named is the changed role of women in society. Legal 1-022
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 from men, in particular
with Islam-influenced law, which for example in succession law only allows female descendants
half of that which male descendants receive from an estate.37 The refugee movements of recent
years will lead to courts increasingly having to deal with such cases. These questions will fore-
seeably constitute a considerable portion of the cases in which public policy is applied.

But this does not just concern manifest cases of unequal treatment. In recent years our sensi- 1-023
tivity to gender issues has increased further. The “Me Too” movement was a big driver behind
this development but was not the only driving force. Pop culture has increasingly promoted
the image of the strong and independent woman and, in the workplace, there are legislative

33 K Duden, Leihmutterschaft im Internationalen Privat- und Verfahrensrecht – Abstammung und ordre public im Spiegel des
Verfassungs-, Völker- und Europarechts (Mohr Siebeck 2015); RD Arenstein, ‘Is Surrogacy against Public Policy? The
Answer Is Yes’ (1988) 18 Seton Hall L. Rev. 831ff.
34 See, in particular, the country reports for Italy (Chapter 10.93ff.), Spain (Chapter 14.76ff.), Poland (Chapter 11.70),
Germany (Chapter 8.57ff.), France (Chapter 7.40) and Russia (Chapter 13.92ff.).
35 See https://​en​.wikipedia​.org/​wiki/​Chimera​_(genetics).
36 In Switzerland there is already a petition for non-human primates to be protected beyond the scope of animal rights
legislation by being recognized as bearers of fundamental primate rights. Federal Court, Judgment 1C_105/2019 from
16.9.2020, Heiner Vischer et al. v. Deborah Ness et al.
37 N Yassari, ‘Intestate Succession in Islamic Countries’ in K Reid/MJ de Waal/R Zimmermann (eds), Comparative
Succession Law, Vol. 2: Intestate Succession (Oxford University Press 2015) 421ff.; D Thompson, ‘Do Islamic Succession
Laws for Muslim Women Violate the Current Human Rights Framework? Developing an Ethical Working Model for
Muslim Minority Nations’ (2016) 13 Muslim World J. Hum. Right. 45ff.; M Brosch, ‘Der materiell-rechtliche ordre
public im internationalen Familien- und Erbrecht: Nationale Perspektiven abseits der Europäisierung im IPR’ (2020)
IPRax 24ff.

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measures to proactively bring more women into senior positions. In this social climate private
international law must re-examine old positions. One example is the orientation of marital
law matters on the home law of the husband, which still exists in the private international law
statutes of some legal orders.38 Where a renvoi is under consideration, then the foreign judge
must apply this rule, unless they regard it as contrary to public policy. Hitherto in Germany,
for example, the prevailing opinion was prepared to shut both eyes: only where the invoked lex
causae would substantively place the wife in a worse position than the husband, would public
policy be engaged. If, however, the husband’s law was itself in substance uncontroversial (i.e.,
above all, if German law came to be applied), the woman would be expected to accept this.39 It
remains to be seen whether this rule will persist contrary to the spirit of the times, or if the point
has been reached where “the last barbarous relic of a wife’s servitude”40 can finally be purged
from private international law.

B. THE RELATIVITY OF PUBLIC POLICY

1. Between Respectful, Reluctant Deference and Unlimited Jurisdiction to Intervene

1-024 The substantive uncertainty and the unforeseeability arising therefrom were in every era the
central critical points about public policy.41 Famous to this day is the almost 200-year-old
warning of an English judge, according to which “public policy is a very unruly horse, and
when you get astride, you never know where it will carry you”.42 Lord Denning picked up on
this sentence but reassured that: “With a good man in the saddle, the unruly horse can be kept
in control. It can jump over obstacles. It can leap the fences put up by fictions and come down
on the side of justice.”43 But that raises the question, to stay with the image, of how the unruly
horse should be saddled (i.e., how to create the rules which enable the rider to retain control
and lead the horse).

1-025 There is unanimous agreement to this day that private international law is not possible without
any public policy exception at all. The US states measure their laws against each other accord-
ing to public policy;44 likewise the Member States of the European Union, even though they

38 See, e.g., sec. 22(2) Thailand Act on Conflict of Laws; Art. 13 Egyptian Civil Code.
39 See P Mankowski, in J von Staudingers Kommentar zum Bürgerlichen Gesetzbuch (Sellier 2011) Art. 14 EGBGB para. 95;
K Thorn in Palandt Bürgerliches Gesetzbuch (80th edn, Beck 2021) Art. 6 EGBGB para. 7.
40 Gray v. Formosa [1963] P. 259, 267 per Lord Denning.
41 M Stürner, ‘Der ordre public im Europäischen Kollisionsrecht’ in S Arnold (ed.), Grundfragen des Europäischen
Kollisionsrechts (Mohr Siebeck 2016) 87, 91; A Mills, ‘The Dimensions on Public Policy in Private International Law’
(2008) 4 J Priv Int L 201, 202; A Briggs, ‘Public Policy in the Conflict of Laws: A Sword and a Shield?’ (2002) 6 Singapore
Journal of International and Comparative Law 953, 975; M Reimann, Conflict of Laws in Western Europe (Transnational
Publishers 1995) 13ff.; G Hohloch, ‘Zur Bedeutung des ordre public-Arguments im Vollstreckbarerklärungsverfahren’
in D Baetge/J von Hein/M von Hinden (eds), Die richtige Ordnung – Festschrift für Jan Kropholler zum 70. Geburtstag
(Mohr Siebeck 2009) 809, 810ff.
42 Richardson v Mellish [1824] 2 Bing 229 at 252.
43 Enderby Town Football Club Ltd v. The Football Association Ltd [1971] 1 All ER 215 at 219.
44 A Bruns, ‘Der anerkennungsrechtliche ordre public in Europa und den USA’ (1999) JZ 278ff.

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regard themselves as a community of laws and values.45 But as long as there remain considerable
differences between the substantive laws of the individual Member States, such as in family law
and succession law, it will be difficult to completely abandon the exception.46

There have been many efforts to create European private international law rules without 1-026
a public policy exception. An early draft of the Maintenance Regulation excluded the objection
when the law of a Member State applied.47 In the same direction was an idea during creation of
the Rome II Regulation, to consider a public policy objection in EU cases only on correspond-
ing application by one of the parties.48 In the Succession Regulation, in the EU the exception
was to be limited to breaches of the EU Charter of Fundamental Rights and the prohibition of
discrimination.49 In the drafts which ultimately became law, however, all these proposals had
to be withdrawn.

Solely in international procedural law have efforts to abandon a public policy exception been 1-027
successful, in certain areas concerning the recognition of judgments from other EU Member
States. The EU Payment Procedure Regulation, the EU Enforcement Order Regulation and
the Small Claims Procedure Regulation no longer contain any such exception when recogniz-
ing judgments from other Member States. The importance of this exception does admittedly
remain small, when one bears in mind that the Payment Procedure Regulation and the Small
Claims Regulation regulate almost all essential procedural matters themselves and thereby leave
little room for deep-reaching differences in values between the Member States.50 At the heart
of European international procedural law, the Regulation on Jurisdiction and Recognition and
Enforcement of Judgments in Civil and Commercial Matters (Brussels Ia) originally also pro-
vided for no public policy exception, but was reintroduced into the ultimate regulation text.51

On the other hand, there can be no unfettered discretion to subject a foreign law to a domestic 1-028
public policy test either. If one were to leave the judge in each case completely without any
instructions, it would not only give them a lot more power, moreover it would thereby directly
force them into a policy crafting role, to a greater extent than was comfortable for the appli-
cation of the law. It is, furthermore, obvious that value questions, if they are to be fully placed
in the discretion of the judge, would barely be predictable with the required certainty. Where

45 D Martiny, ‘Die Zukunft des europäischen ordre public im Internationalen Privat- und Zivilverfahrensrecht’ in M
Coester/D Martiny/KA Prinz von Sachsen Gessaphe (eds), Privatrecht in Europa – Vielfalt, Kollision, Kooperation,
Festschrift für Hans-Jürgen Sonnenberger zum 70. Geburtstag (Beck 2004) 523, 541; W Wurmnest, ‘Ordre public’ in S
Leible/H Unberath (eds), Brauchen wir eine Rom 0-Verordnung (Jenaer Wissenschaftliche Verlagsgesellschaft 2013) 445,
451f.; M Stürner, ‘Die Bedeutung des ordre public in der EuErbVO’ (2014) GPR 317, 318; TM de Boer (n 3) 324.
46 C Heinze, ‘Bausteine eines Allgemeinen Teils des Europäischen Internationalen Privatrechts’ in D Baetge/J von
Hein/M von Hinden (eds), Die richtige Ordnung – Festschrift für Jan Kropholler zum 70. Geburtstag (Mohr Siebeck 2009)
105, 126; G Reichelt, ‘Zur Kodifikationsidee des europäischen Kollisionsrechts – am Beispiel des ordre public’ in G
Reichelt (ed.), Europäisches Gemeinschaftsrecht und IPR (Manz 2007) 5, 9.
47 Art. 20 sent. 2 of the Proposal, COM(2005) 649 final of 15.12.2005.
48 Report of the Committee on Legal Affairs, A6-0211/2005 of 27.6.2005, Amendment 50 on Art. 22.
49 COM (2009) 154 final at Recital 24.
50 B Sujecki, ‘Die Möglichkeiten und Grenzen der Abschaffung des ordre public-Vorbehalts im Europäischen
Zivilprozessrecht’ (2008) ZEuP 458, 477.
51 The proposal is in COM(2010) 748 final; see now Art. 45(1) lit. a of the Jurisdiction, Recognition and Enforcement
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the line of unacceptable contradiction of values should be drawn would then only depend on
the personal attitude of the individual judge. There is also the fear that the forum will impose
its own ideas over others under the cover of defending values and thus give rise to cultural
imperialism.52

1-029 If it is not possible to have any public policy exception at all, or to have an unrestricted general
clause, then the solution must necessarily lie between these extreme points, namely in the
proper substantive restriction of the exception. Here lies, perhaps, the greatest challenge of
this legal institution, as no-one can exhaustively list ex ante which foreign legal solutions are
contrary to one’s own fundamental values.

2. Lists

1-030 There have certainly been attempts at regulation by means of comprehensive lists of what is
contrary to public policy. In early conventions of the Hague Conference on Private International
Law, Member States, on signing the Treaty, had the opportunity to submit a list of those rules
which contravened their respective public policy.53 The shortcomings of this model, however,
very quickly became apparent. For example, France, in its list under the Marriage Convention
(1902), failed to lodge a valid objection to the German law, which at the time denied deserters
the possibility of marriage; accordingly German deserters after the First World War could not
enter into marriage in France. This was regarded as so unsatisfactory that France ultimately
withdrew from the Treaty.54 As the Nuremberg race laws of national socialist Germany then
formulated further obstacles to marriage in the racial origin of the parties, which naturally no
state on signing the Marriage Convention could have possibly foreseen and against which
there was no appropriate means of defence, the list approach had to be ultimately regarded as
a failure.55

3. Special Reservation Clauses

1-031 An approach that continues to this day is to protect certain concrete values in special reserva-
tion clauses. A common feature is that they refuse, as a matter of principle, to recognize certain
foreign rules.56 Their elements are more clearly defined which, of course, makes their result
more foreseeable but, at the same time, this makes their application less flexible. The preva-
lence of such clauses has recently increased, which can be understood as an expression of the
increasing instrumentalization of private international law to achieve political aims. For policy
makers they represent a means to respond quickly and publicly to current social developments
such as the refugee crisis.

52 Mills (n 41) 235; Wurmnest (n 45) 447 at fn. 10; P Vallindas, ‘Der Vorbehalt des ordre public im Internationalen
Privatrecht’ (1953) 18 RabelsZ 1, 6.
53 Lagarde (n 21) 11–3; A Makarov, ‘Die Haager Internationalprivatrechtlichen Abkommen und die Vorbehaltsklausel’ in
Juristische Fakultät der Universität Freiburg (Schweiz) (ed.), Ius et Lex – Festgabe zum 70. Geburtstag von Max Gutzwiller
(Helbig & Lichtenhahn 1959) 303ff.
54 E Gottschalk, Allgemeine Lehren des IPR in kollisionsrechtlichen Staatsverträgen (Duncker & Humblot 2002) 256ff.
55 E Gottschalk (n 54) 256ff.; von Bar/Mankowski (n 5) § 3 para. 74.
56 See, e.g., Art. 10 Rome III Regulation, which guarantees both parties to the marriage equal access to divorce and which
also prevails over any contrary divorce law.

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A typical example is the prohibition of child marriages by setting a strict minimum age 1-032
requirement.57 As these special reservation clauses define their own scope of application, they
are not part of the consideration of individual circumstances within the general public policy
test, which means that any conduct deviating from the special provisions is never capable of
recognition, even if there were to be good reasons for doing so on consideration of the indi-
vidual circumstances. This rigidity of the special reservation clauses can absolutely be seen as
a weakness. Conversely, questions remain. If the legislator itself has imposed a rigid boundary,
it remains unclear whether a result which, although strictly speaking within its bounds, does,
in an individual case, lead to consequences which are difficult to bear, it may be possible to
conduct a further test under the general public policy clause. One could argue that the special
clause has already conclusively determined that all results which it does not prohibit are gener-
ally allowed. A further extension of more specific public policy rules would, for these reasons,
not appear to be conducive to creating the required legal certainty.

Absolute is also the supremacy of overriding mandatory provisions, which historically grew out 1-033
of the “ordre public positif” but have long since developed into an independent legal institution
with their own rules. Mandatory overriding provisions always have priority and cannot be over-
ridden even where private international law otherwise calls for the application of a foreign law,58
irrespective of the circumstances of the individual case. Thus, the more statutory rules require
direct application, the less room remains for a private international law test.

4. Relativity as a Flexible System

The different approaches to tame the unruly horse of public policy have ultimately led to the 1-034
emergence of a theoretical framework in which several interplaying factors decide whether
there is a contravention of public policy. There are three59 elements which steer this examina-
tion: The first element concerns the relative position of the domestic rule in question within
the domestic legal order as a whole, i.e. its general worthiness of protection. The higher the
protected interest in question ranks, the more appropriate it is to defend it against contradictory
foreign legal rules. The second element then concerns the severity of the infringement in the
individual case, i.e. the seriousness of the violation. The more severe the effect of the violation
in the individual case, the more justified it will be to invoke public policy in defence. In the
third element the degree of relation to the domestic country is considered, i.e. the stronger
the effect of the violation of fundamental values of the lex fori domestically, the greater reason
there is to correct the result via public policy. These three elements are known as the decisive
cornerstones of the public policy test in numerous jurisdictions, though in individual cases it
can be that there are differences in their relative weighting from country to country.60

We can envisage these three levels as three weighing scales, which tip according to the respec- 1-035
tive severity and effect in the individual case. Relativity means that it is not sufficient if, when

57 On the German regulation of this area, see the report by Mankowski/Langenhagen, Chapter 8.
58 Von Bar/Mankowski (n 5) § 7 para. 275.
59 A fourth dimension of relativity concerns the relation of the case under consideration to the current time: The further
the conduct complained of lies in the past, the less likely it is that public policy will be engaged.
60 SL Gössl, ‘The Public Policy Exception in the European Civil Justice System’ (2016) 4 European Legal Forum 85 ff.;
Lagarde (n 21) 11–24ff.

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considered separately, one of the three scales tips into the red. The three factors can balance
each other out. In other words, even a violation of comparatively high-ranking domestic
values can still be tolerated, if the domestic relation of the facts of the case is low, and the
consequences of the violation would almost exclusively be felt abroad. Conversely, the circle of
protected values can increase, the more densely events are concentrated within a country’s own
borders. Thus, the contravention of public policy is, in principle, not examined absolutely but
relatively, i.e. in relation to the respective circumstances of the individual case.61

1-036 The Austrian Walter Wilburg coined the term “flexible system” (“bewegliches System”) for this
dynamic interplay of various principles.62 Characteristic of such a system is the plurality of the
principles embodied therein. These cannot be reduced to a common denominator, rather are to
be weighed against each other. Applied to public policy this means that, although the parame-
ters of the test are precisely laid down, connecting them allows for judgments to appropriately
take account of different situations. The advantage of such a system lies in its ability to unite the
certainty of clearly defined elements with the flexibility of general clauses. The legislator sets
the direction, but otherwise leaves the weighing of relevant factors to the judge. Rather than
complete freedom as with an open general clause, case law thus exercises a guided discretion.

1-037 It is, however, within this basic theoretical framework of public policy that changes are most
recognizable today. On closer examination of the three scales, new developments and tenden-
cies are, in fact, evident; this points to a certain change in the function of public policy within
the system of private international law.

C. THE IMPORTANCE OF THE RULE TO BE PROTECTED

1. International Sources of Public Policy

1-038 The first dimension of relativity concerns the position of the relevant rule within the system
of the lex fori as a whole. It relates to the pool of values most worthy of protection within the
respective legal order. The term “public policy” is taken from the French “ordre public”, namely
Article 6 cc, where admittedly it does not appear in relation to problems of conflicts of laws.
Rather, the term ordre public there described, alongside “les bonnes moeurs”, concerns the
extent to which parties may deviate from mandatory law by contractual agreement. Its signifi-
cance in private international law originated later and is attributed to Brocher, who introduced
the distinction between “ordre public interne” and “ordre public international”.63 Whereas the

61 I Thoma, ‘Public Policy (ordre public)’ in J Basedow/G Rühl/F Ferrari/P de Miguel Asensio (eds), Encyclopedia of
Private International Law, Vol. 3 (Edward Elgar 2017) 1457.
62 W Wilburg, Entwicklung eines beweglichen Systems im bürgerlichen Recht (Graz 1950); English translation in The
Development of a Flexible System in the Area of Private Law (Manz 2000); id., ‘Zusammenspiel der Kräfte im Aufbau des
Schuldrechts’ (1963) 163 AcP 346. See also OGH (2019) FamRZ 359; H Koziol, ‘Das bewegliche System – Die goldene
Mitte für Gesetzgebung und Dogmatik’ (2017) Austrian Law Journal 160ff.; SK Paas, Das bewegliche System (Mohr
Siebeck 2021).
63 C Brocher, Cours de droit international privé, suivant les principes consacrés par le droit positif français, Vol. 1 (Paris
1882) 108ff.

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former determines when (ordinary) mandatory law prevails over contrary private agreements,
the latter regulates when domestic law prevails over foreign law which otherwise applies.64

There is agreement that the threshold for international public policy is considerably higher than 1-039
that for domestic mandatory law. Indeed, private international law proceeds from the principle
of equality of the different legal orders. If, therefore, a foreign law is determined to be appli-
cable, then this should be applied despite the differences. Thus, not every deviation from the
lex fori can be asserted to be contrary to public policy; moreover, only especially high-ranking,
practically indispensable, values can be protected. What these indispensable values are is not
a simple “yes” or “no” decision but scaled: The higher the value to be protected is estimated, the
more likely it is that a public policy exception can apply. A high-ranking constitutional right is
almost always one of these indispensable fundamental values; likewise, an important element of
justice will be defended; whereas mere technical provisions with no special protective purpose
will regularly not be a matter of public policy. Whether a rule is a matter of public policy is not
absolute but depends on the circumstances of the case. For this reason, it is difficult to predict.

The statutory formulations of the reservation clauses reveal little about whether a given rule 1-040
is a matter of public policy. Historically, it primarily concerns defence of domestic mandatory
rules, i.e. those which Savigny carved out as the “laws of a strictly positive, imperative nature”.
This idea continues to have effect in the formulation of some national public policy provisions.
Thus, for example, the first sentence of Article 6 of the German EGBGB mentions the “essen-
tial principles of German law”, the first sentence of § 6 of the Austrian Private International
Law Act mentions the “fundamental values of the Austrian legal order”; and Article 1.11(1)
of the Civil Code of the Republic of Lithuania mentions “the public order established by the
Constitution of the Republic of Lithuania and other laws”.

As noted above, however, the focus of the public policy test has shifted. For the enforcement of 1-041
mandatory rules of the lex fori, we now have available an independent private international law
tool in the form of mandatory overriding provisions. These protect an important legal interest
of great social, economic or cultural significance, i.e. values which one would have originally
counted as the most fundamental values of a legal order. Thus, the protection of individual
freedoms remains as a primary area within the scope of the application of public policy. It
has already been commented that the term “public policy” has become confusing, because the
majority of court cases now concern the protection of private interests and not, as such, public
policy.65

Today, the protection of certain core areas of the personality is by no means solely the task 1-042
of individual state legislators; rather, it occurs increasingly on an international level through
numerous conventions and other harmonized texts. Here we can thus observe the first signif-
icant shift of public policy, in that the original defence of domestic values has, in many places,
given way to the protection of supranational laws. A particularly prominent role here is played
by the European Convention on Human Rights (ECHR) of 1950, to which now 47 states are
signatories.

64 I Thoma (n 61) 1457; Briggs (n 41) 966.

65 Jayme (n 13) 62.

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1-043 The role which international sources are assuming in relation to the substantive shaping of
public policy differs noticeably from state to state. At one end of the spectrum are those states
in which international reference works have already squeezed the national legal order out of the
argument to a great extent, e.g. in Italy.66 In Romanian private international law (Art. 2.564(2)
New Civil Code) the fundamental principles of European Union law and fundamental human
rights are named as sources of equal value for public policy alongside the fundamental princi-
ples of Romanian law. Other countries are familiar with regular references to internationally
protected human rights.67 A political message can sometimes also lie therein; countries which
are being treated as future accession candidates to the European Union already declare the
European Charter of Human Rights or fundamental freedoms as part of their unconditional
core of protected values, they thus also expressly declare their support for the European com-
munity of values.

1-044 Even in countries, in which their own domestic laws generally decide the application of public
policy, the additional citation of international standards is completely accepted. Germany can
serve as an example here. German courts in determining public policy still primarily base it
on the basic rights, which are expressly named as determinants of German public policy in
Article 6, 2nd sentence EGBGB. An additional mention of the ECHR, therefore, does not
often appear necessary, as the constitution’s substantive scope of protection in many cases goes
even further than that of the latter.68 But, in any case, the argument for the invocation of the
public policy exception is strengthened, when it can be shown that it is defending not only the
integrity of the lex fori, but also a principle regarded by many other countries as exceptionally
important.69

1-045 They can be contrasted with those states in which international catalogues of values appear to
play no role in determining national public policy, i.e. in which solely domestic provisions tip
the balance. That the USA falls within this group is not surprising, when one considers the tra-
ditionally low influence of foreign sources in American court practice.70 In China, public policy
appears to have a public law focus to this day. Much more strongly than in other countries,
its focus remains on protecting the Chinese state model, rather than the defence of individual
freedoms which are governed by international conventions.71

66 See the Italian country report by Franzina, Chapter 10.51ff.

67 B Hess/T Pfeiffer, Interpretation of the Public Policy Exception as Referred to in EU Instruments of Private International and
Procedural Law – Study for the European Parliament (2011) 13.
68 Mankowski/Langenhagen, Chapter 8 in this volume.
69 Heinze (n 46) 125ff.
70 The value of foreign sources in influencing decisions in US law has been the subject of judgments of the US Supreme
Court many times, such as Printz v. United States (95-1478), 521 U.S. 898 (1997); Roper v. Simmons, 543 U.S. 551. See
also Coyle, Chapter 18 in this volume.
71 M Malacka, ‘Die rechtliche, politische und kulturelle Bedeutung des ordre public im Internationalen Privatrecht’ (2019)
ZfRV 61, 67.

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2. Supranational Public Policy?

Distinct from the question of whether the national public policy can be determined by refer- 1-046
ence to international bodies of rules is whether certain international rules have come to form an
independent public policy above the level of individual state legal systems.

(a) European Public Policy

A discussion in this direction is ongoing in the European area, where the ECHR lists common 1-047
values for all its Member States. For the states of the European Union there is also, in particu-
lar, the Charter of Fundamental Rights as well as the European Fundamental Freedoms from
the founding treaties. The discussion as to whether we can thus speak of a specific European
public policy (“ordre public Communautaire”) is already many decades old.72 It has in that time
provoked considerable academic interest.73 There is broad agreement that this European public
policy has at least a limited, i.e. negative, function in relation to deviating national rules.74 In
other words, a national court cannot draw on its own domestic public policy as a defence against
foreign rules, when that public policy itself contravenes European public policy, e.g. through
discriminatory rules. Admittedly this may only be a rare occurrence in court practice.

On the other hand, the often-prophesied positive importance of European public policy has 1-048
yet to really manifest itself in practice. Its consequence would be that protection standards
from European legal texts would grow to such an extent that they would have to be defended
by national courts, even if they are not matters of domestic public policy. The leading decision
here is cited as the CJEU judgment in the Krombach case.75 But although the formulation
chosen by the court there does, in fact, look like it derived the substantive meaning of public
policy positively from European rules, the result is ultimately not spectacular. The violation of
the complainant’s right to legal redress was clear and most probably any other tribunal would
have seen it the same way without recourse to any conflicts of laws rules, such as if a French
citizen had brought the same matter to the ECtHR.76 An increasing substantive shaping of
public policy by the CJEU cannot be ascertained to this day, though it may well still develop
in the future.

(b) Transnational Public Policy

The second fertile area for theories on higher-ranking international fundamental values is the 1-049
doctrine of transnational public policy, sometimes also called “truly international public policy”.
The concept was originally created in the field of international arbitration, and to this day is

72 See B Moser, ‘Die Europäische Menschenrechtskonvention als Quelle des IPR’ (1974) ÖJZ 650ff.
73 See Basedow, (n 14) 291ff.; T Struycken, ‘L’ordre public de la Communauté Européenne’ in Vers de nouveaux équilibres
entre ordres juridiques – Liber amicorum H Gaudemet-Tallon (Dalloz 2011) 617ff.; JA Frowein, ‘La convention européenne
des droits de l‘homme comme ordre public de l’Europe’ in Collected Courses of the Academy of European Laws
(Martinus Nijhoff 1990) 267ff.; Martiny (n 45) 523ff.; A Colombi Ciacchi, Internationales Privatrecht, ordre public
européen und Europäische Grundrechte, ZERP-Diskussionspapier 1/2008.
74 Von Bar/Mankowski (n 5) § 7 para. 272; Fumagalli (n 5) 175ff.
75 Case C-7/98 Krombach v. Bamberski [2000] ECR I-01935.
76 A Stein, ‘Der Europäische Vollstreckungstitel für unbestrittene Forderungen tritt in Kraft’ (2004) IPRax 181, 185.

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applied, for the most part, only by arbitral tribunals.77 Outside of arbitration law and the typical
cases it decides – in international commercial law – the construct does not appear to be used
to any notable degree, thus in succession or family law one does not speak of any transnational
public policy.

1-050 The necessity for an independent transnational public policy is understandable when one
remembers that arbitration courts have no lex fori. The tribunals are often occupied by arbi-
trators from different jurisdictions; they do not appear in public court buildings, rather in the
private business environment nor do they owe any state the defence of its fundamental values.78
Its decision must nevertheless serve the interests of the parties, i.e. it should be enforceable, and
here Article V(2)(b) of the New York Convention recognizes contravention of public policy as
a reason for refusing recognition and enforcement of an arbitration award. The arbitration tri-
bunal should, for this reason at the very least, always respect the public policy of those countries
in which enforcement of the arbitration award is foreseeable.79 Generally though it is easier, and
may also be more readily accepted by the parties, for an arbitration tribunal to base its decisions
not on the fundamental values of any particular state, such as that of the victorious litigant, but
rather on a higher, i.e. transnational order, which is common to all or at least very many states.

1-051 The substantive content of these transnational rules is for the most part barely surprising: The
prohibition of slavery, of trade in human organs, or the formation of cartels should certainly be
able to assert worldwide applicability.80 In terms of absolute rules, these are also not problem-
atic. Also at least recognized in principle are the prevention of corruption, child labour, drug
dealing, or environmental damage, though the lines are drawn differently in different locations.

1-052 The most difficult question in this context is therefore whether transnational public policy also
includes those rules which should, in the view of the arbitration tribunal, apply worldwide.81
Transnational public policy could therefore be used as a means to disqualify disagreeable rules
of the applicable national law and replace them.

77 O Meyer, ‘The Formation of a Transnational Ordre Public against Corruption: Lessons for and from Arbitral Tribunals’
in S Rose-Ackerman/P Carrington (eds), Anti-Corruption Policy (Carolina Academic Press 2013) 229ff.; A Chong,
‘Transnational Public Policy in Civil and Commercial Matters’ (2012) 128 Law Quarterly Review 88ff.; C Kessedjian,
‘Transnational Public Policy’ in AJ van den Berg (ed.), International Arbitration 2006: Back to Basics? (Kluwer 2007)
857ff.; I Tornberg, ‘Politik hinter dem ordre public transnational – Schwerpunkt ICC-Schiedsgericht’ in SL Gössl
(ed.), Politik und Internationales Privatrecht (Mohr Siebeck 2017) 19ff.; F Ghodoosi, International Commercial Law:
International Dispute Resolution and the Public Policy Exception (Routledge 2016) 108ff.
78 N Horn, ‘Zwingendes Recht in der internationalen Schiedsgerichtsbarkeit’ (2008) SchiedsVZ 209, 210ff.
79 M Hwang/K Lim, ‘Corruption in Arbitration — Law and Reality’ (2012) 8 Asian International Arbitration Journal 1ff.
(at note 86).
80 Kessedjian (n 77) 869.
81 RO Broglia Mendes, ‘A Private Transnational Law to Transnational Legal Regimes?’ in G Calliess/A Fischer-Lescano/D
Wielsch/P Zumbansen (eds), Soziologische Jurisprudenz: Festschrift für Gunther Teubner zum 65. Geburtstag (de Gruyter
2009) 827, 834; Mills (n 41) 224.

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D. THE SEVERITY OF THE BREACH

1. The Hague Formula

The second dimension of relativity concerns the effects of a breach in the individual case. 1-053
Namely it should not be sufficient if the applicable foreign law collides with essential funda-
mental values of the lex fori according to its abstract substantive content alone. Only if the
consequences in the instant case exceed the tolerable amount does public policy block the
application of foreign law. In other words, it may happen that a foreign law, which might in the
abstract be held to be contrary to the public policy of the forum, could nevertheless be applied,
if the actual result does not in itself offend the public policy of the forum to a sufficient degree.

The material threshold here is regularly set high: The breach must be “manifest”. This term 1-054
originated from the work of the Hague Conference on Private International Law. After con-
sidering different techniques to constrain public policy and thereby make it more manageable
and its results more foreseeable, the adjective “manifestly” emerged as a formulation capable of
consensus.82 Since the Convention of 24 October 1956 on the law applicable to maintenance
obligations towards children, this threshold has appeared, practically unchanged, in every
Hague private international law convention.

Admittedly the characteristic “manifestly” is not particularly sharply contoured; it does not 1-055
elevate the standard into a rule. The term is therefore criticized as lacking substance.83 But all
the same it works as a clear warning to all who apply the law to use public policy sparingly. It
expressly re-emphasizes its nature as an exception to a rule.

The Hague formula has endured in legal practice; it put an end to all efforts to completely 1-056
exclude public policy from international treaties. As it was clearly accepted by the most differ-
ent of states, it was also employed in other harmonization projects, particularly in the European
Union. There, the qualification of manifest irreconcilability with public policy first appeared
in Article 16 of the Convention on the Law Applicable to Contractual Obligations 1980. The
official report by Giuliano and Lagarde recognizes a particular burden of justification for the
judge: they must give in their judgment special grounds for upholding the objection.84 In the
current European private international law regulations this qualification also appears through-
out.85 The CJEU regularly cites this formulation when it is emphasizing the exceptional char-
acter of the public policy exception.86

82 Makarov (n 53) 320.

83 M Ferid, Internationales Privatrecht (Schweitzer 1975) 69 stated that this restriction reflects an intention to compromise
but has no real legal content.
84 Report on the Convention on the law applicable to contractual obligations by M Giuliano/P Lagarde, OJ C 282,
31.10.1980, p. 38.
85 It is remarkable that the draft proposal for the succession regulation (COM (2009) 154 final, Art. 27) initially did leave
out this characteristic, but it was reintroduced for the remaining legislative procedure, see Art. 35 Succession Regulation.
86 The fundamental point in the Krombach judgment (n 8) para. 37: “In order for the prohibition of any review of the
foreign judgment as to its substance to be observed, the infringement would have to constitute a manifest breach of a rule
of law regarded as essential in the legal order of the State in which enforcement is sought or of a right recognized as being
fundamental within that legal order.”

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1-057 At the national level, many provisions contain the same or similarly formulated material thresh-
olds.87 Even in those jurisdictions where the legislator has consciously decided not to include
this qualification, for example in Austria and Switzerland,88 in practice it is still tacitly counted
among the requirements for public policy, to appropriately limit its application.

1-058 Yet we have observed in the recent past a trend of condemning certain legal issues as being
absolutely contrary to public policy without even examining the individual circumstances of
the case. This development is evident in the extension of special reservation clauses which the
legislator employs as a defence mechanism against those foreign institutions who appear to be
particularly undesirable. However, even in relation to general public order provisions, it seems
that certain consequences are just never acceptable. This development is evident in the exten-
sion of special reservation clauses which the legislator employs as a defence mechanism against
foreign institutions who appear to it to be particularly undesirable. But also, even in relation to
general public order provisions, it is increasingly heard that certain consequences are just never
to be accepted.

2. Special Reservation Clauses

1-059 Special clauses in the area of public policy often have a strongly political background. The
legislator can thus react in a timely manner to what it recognizes as a current social problem.
The American anti-foreign law statutes belong here in a functional sense, but also, for example,
minimum age requirements as a precondition for the recognition of foreign marriages.
Particularly controversial is the rationale of Article 13(3) of the German EGBGB, which was
introduced in 2017 during the refugee crisis and established sixteen as the minimum age as
a basic precondition for the recognition in Germany of a marriage concluded abroad.89

1-060 With such rules there is no longer any consideration of individual circumstances otherwise
typical of public policy cases. A marriage entered into abroad below the minimum age require-
ment can never have any effect. This applies even though, in terms of the underlying values, it
makes little difference if the marriage was entered into a few weeks before or after the spouse’s
sixteenth birthday.90 It is further irrelevant whether the marriage works well and the underage
spouse – almost always the wife – wants to remain within it or even whether her situation
would be considerably worse if she were to lose not only her husband but also, at the same time,
a right to maintenance. Further there are problems with free movement (Art. 21 TFEU), if the
marriage was entered into in another EU state. If one surrenders the flexibility of consideration
of individual circumstances ex post in favour of an abstract test ex ante, then all these particu-
larities no longer have any significance, and the political verdict stands.91

87 Hess/Pfeiffer (n 67) 28; Wilke (n 5) 258ff.

88 See the Swiss report by Furrer/Trüten, Chapter 16 in this volume.
89 See the contribution by Mankowski/Langenhagen in this volume (Chapter 8); MP Weller/A Schulz, ‘Political Private
International Law’ in J von Hein/EM Kieninger/G Rühl (eds), How European Is European Private International Law?
(Intersentia 2019) 285, 293; M Stürner, ‘Politische Interessen und Internationales Privatrecht’ in C Benicke/S Huber
(eds), National, International, Transnational: Harmonischer Dreiklang im Recht, Festschrift für Herbert Kronke (Gieseking
2020) 557, 563ff.
90 Mills (n 41) 218.
91 Vallindas (n 52) 8; M Keller/K Siehr, Allgemeine Lehren des internationalen Privatrechts (Schulthess 1986) § 42 II 1.

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Meanwhile, at the European level, the legislator is resorting to special public policy clauses. 1-061
The Rome II Regulation was originally intended to contain a special rule on punitive damages,
but it was ultimately demoted to a mere recital; the same applies to the special regulation of the
right to reserved shares in the European Succession Regulation. The European international
divorce law, however, goes further. Article 10 of the Rome III Regulation permits a spouse
to divorce according to the lex fori if the otherwise applicable law does not offer divorce or at
least not on the same terms for men and women. The rule has been criticized for numerous
reasons.92 In the present context it is sufficient to note, however, that it concerns a special public
policy rule with no possibility of considering individual circumstances.93 This is supported not
only by the clear wording, but also by the systematic positioning of the general public order
rule in Article 12 of the Rome III Regulation. As a consequence, the application of the foreign
divorce law would have to be rejected, even where, in the individual case, it would have no
unbearable consequences (e.g., if the woman agrees to the divorce); the wording of the rule
takes precisely no regard of the will of the affected parties. Indeed, the CJEU has so far evaded
the question of whether Article 10 of the Rome III Regulation does, in fact, leave room for the
consideration of individual circumstances.94

3. Other Absolute Values

Apart from special public policy clauses, the principle of relativity remains, namely, it depends 1-062
on the concrete effects of the foreign rule in question in the individual case. Depending on the
content of the rule, the public policy exception may be applied often, sometimes, or seldom
in a given situation. Only when a foreign rule always and under every possible aspect leads to
a result which contravenes the public policy of the forum can a consideration of the individual
circumstances be unnecessary, and the exception invoked purely based on an abstract test of
the rule.

A textbook example of such a rule is slavery, which is no longer practised in any civilized 1-063
country today.95 Though there are indeed grey areas, such as child labour or the systematic
exploitation of other weaker groups. But a rule which allows the sale of another human being
and thus their dehumanization and demotion to a mere possession, would certainly, irrespective
of its effects in the individual case, never be applied. Other examples which one could consider
here concern corruption or the trafficking of hard drugs.

Recently, we have observed a trend to extend those fundamental values which must be defended 1-064
absolutely and irrespective of the individual circumstances. This concerns, in particular, the
area of fundamental and human rights.96 Here, one hears more and more often that certain vio-

92 J Antomo, ‘Anerkennung ausländischer Privatscheidungen – Rom III-VO analog?’ (2018) NJW 435ff.; P Winkler von
Mohrenfels, Münchener Kommentar zum BGB, vol. 12 (8th edn, Beck 2020) Art. 10 Rom III-VO paras 3–5.
93 Stürner (n 89) 566; R Hausmann/F Odersky, Internationales Privatrecht in der Notar- und Gestaltungspraxis (3rd edn, CH
Beck 2017), § 11 n 47.
94 Case C-372/16 Soha Sahyouni, ECLI:​EU:​C:​2017:​988.
95 V Lowe, International Law (Clarendon Press 2007) 40; M Pryles, ‘Reflections on Transnational Public Policy’ (2007)
J Int’l Arb 1ff.; S Jagusch, ‘Issues of Substantive Transnational Public Policy’ in D Bray/HL Bray (eds), International
Arbitration and Public Policy (Juris 2015) 27.
96 Gössl (n 60) 91.

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lations cannot be weighed against any possible mitigating circumstances in the individual case.
In Germany, for example, the systematic structure of Article 6 of the EGBGB expresses that
these basic rights have an absolute blocking function, i.e. there can be no bad and not-so-bad
violations of basic rights.97 Here the famous “Spaniard” decision continues to have effect, in
which the constitutional court established the primacy of protection of fundamental rights over
private international law.98 In Sweden, the protection of human rights has been taken out of the
area of public policy and follows its own rules.99

1-065 If this observation is accurate, then it speaks of the increased significance of public policy in
view of societal changes affecting many areas of life. The development of the former positive
public policy to an independent private international law institution of mandatory overriding
provisions means that the remaining role of negative public policy is primarily the defence of
human rights. Human rights today are furthermore increasingly present in the public con-
sciousness. Discrimination, whether based on ethnic origin, gender or disability, is, in many
cases, no longer tolerated. Thus, the red area in which there is always a breach of public policy
is potentially extending.

1-066 If, however, the individual circumstances of a case are no longer determinative at least in cases
of severe fundamental rights violations, this also shifts the standard of the test. A test for the
effects of the foreign rule in the individual case thus gives way to a test of the abstract rule as
such. Thus, it no longer concerns protecting the affected party from the inappropriate conse-
quence of a foreign rule, rather it concerns the conflict of values between domestic and foreign
law as such. Furthermore, the shift from an ex-post to an ex-ante test also leads to an increase
in significance of public policy because no longer is it a last means of defence which only very
exceptionally intervenes in a corrective manner but, rather like a gatekeeper, it decides at the
outset which foreign rules even stand a chance of application before a court. If it comes to that,
then, in future, we will see a tendency for the courts to apply the lex fori more often.

E. THE PROXIMITY OF THE FORUM STATE

1-067 The final hurdle for the public policy exception is constituted by the degree of the domestic
relation (“Inlandsbeziehung”) to the facts of the case to be decided. This relationship is, in
principle, relative to the other requirements, i.e.: The lower the seriousness of the breach, the
higher the intensity of the effects in the jurisdiction of the deciding court must be, for a foreign
law applicable as such to be set aside in favour of the lex fori.

1-068 Conversely, even legal institutions which, at first sight appear most strange, can be tolerated
if they only have a limited effect domestically; the textbook example is polygamy, which,
although rejected in western Christian culture, does not necessarily mean that a polygamous
marriage entered into abroad does not give all wives an actionable right to maintenance or

97 Lagarde (n 21) 11–55; D Looschelders, ‘Anpassung und ordre public im Internationalen Erbrecht’ in H Kronke/K
Thorn (eds), Grenzen überwinden – Prinzipien bewahren, Festschrift für Bernd von Hoffmann (Gieseking 2011) 266, 274.
98 BVerfGE 31, 58ff.
99 See Maunsbach in this volume (Chapter 15).

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a share of inheritance.100 A similar idea also underpins the weakened effect of procedural law
public policy concerning the recognition of foreign judgments (ordre public atténué) because,
if the judgment is already having an effect in its country of origin, then frequently the relation
to the state in which recognition is sought is not dominant, so the criterion can be interpreted
more generously.101

The domestic territory criterion has long been known as an instrument to tame public policy. 1-069
Fritz Kahn first made the assertion that there is no value at all which must be defended world-
wide if it has no connection to the domestic territory in 1898.102 Some private international law
codifications express this in their wording today, such as in Belgium, where Article 21(2) of the
Code of Private International Law provides that in determining the incompatibility with public
policy, special consideration is given to the degree to which the situation is connected with the
Belgian legal order. In other jurisdictions, although the criterion is not explicitly mentioned
in the statutory texts, it is at least familiar in court practice although the weight attached to it
might be regarded differently in the various countries. So, for example, the significance of the
domestic relation in Italian court practice is said to be rather modest.103 But, equally, where
public policy is defending a world view as such, there barely remains room for any exercise
in relativity. Such is reported, for example, in religious legal systems, because if public policy
ultimately represents the word of a divine power, then it cannot be limited to merely territorial
effects.104

This approach at least seems sound in theory, because the territorial proximity of the facts of 1-070
a case is also the primary criterion in private international law. If even the question of determin-
ing the applicable law is primarily decided according to the closest territorial connection, then
it makes sense to also justify exceptions to it with regional arguments, namely the proximity
of a violation of overriding values to the territorial jurisdiction of the court deciding the case.
As the justification for the international jurisdiction of the courts of a state regularly requires
a connection of the facts of the case to this state, then it is rare that there is no domestic connec-
tion at all.105 What kind of proximate relationship is decisive here is judged from case to case,
whereby the courts have considerable margins of discretion. Often the place of residence of the
person to be protected or a similar relational status can be decisive, but possibly also the location
of the property or the place of the occurrence.106 The bandwidth of possible connections thus
also contributes to the uncertainty and unforeseeability of the application of public policy.

Of course, to what extent the criterion of a domestic connection is still justified in a global 1-071
world is in no way clear. This is revealed even by a glance at those special public policy clauses

100 See, e.g., the cases reported from the United States (Chapter 18), Russia (Chapter 13), Turkey (Chapter 17), Spain
(Chapter 14) and Poland (Chapter 11).
101 Basedow (n 14) 300.
102 F Kahn, ‘Die Lehre vom ordre public (Prohibitivgesetze)’ (1898) 39 JherJb 4, 24ff.
103 See Franzina (Chapter 10 in this volume).
104 M Malacka, ‘Die rechtliche, politische und kulturelle Bedeutung des ordre public im Internationalen Privatrecht’ (2019)
ZfRV 61, 68ff.
105 Gössl (n 60) 90. Lima Pinheiro (Chapter 12) points out that especially concerning contractual agreements on jurisdic-
tion, the domestic relation of the facts of a case can be weak.
106 See, e.g., the German report (Chapter 8).

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that define their own scope of application and place the protection of their own citizens at the
centre; for example, Article 13(2) of the German EGBGB allows for additional possibilities
to enter into marriage, if one of the engaged parties is a German national. Though these rules
may well have been politically acceptable when they were enacted, today one must ask why only
one’s own nationals are worthy of protection from the severity of a foreign law, whereas others
do not fall under the exception. Such double standards are discriminatory and leave a bitter
taste.107

1-072 There is barely any other area today in which the territorial extension of responsibility for the
protection of weaker parties is as clear as in the social and legal responsibility for compliance
with human rights and workers’ rights in the supply chain.108 Over many years western enter-
prises have profited from the division of labour and had their wares produced in low-wage
countries. They could keep their wage costs low through exploitative working conditions,
which often lacked even the most basic standards. The supplying states had neither the power
nor the will to mandate better production conditions. The buyers in the industrialized nations
did not see themselves as responsible as, even though the supply businesses were economically
dependent on them, they were ultimately, as a matter of company law, independent and thereby
master of their own internal organization. Now it is the legislators in the enterprises’ home
countries which are the driving force when it comes to making rules by which businesses can be
required to enforce certain standards of care along the supply chain.109 The defence of human
rights in foreign continents can thus today surely be seen as part of a state’s responsibilities,
especially if there are no appropriate and effective ways to defend human rights at a local level.

1-073 The prevailing view was that even states’ catalogues of fundamental rights do not apply across
borders, rather only with a sufficient domestic connection. However, that the defence of human
rights can no longer be thought of as a purely territorial concept is evident from the large
number of regulatory works in this area. By becoming a member of such a common code of
values, a state promises other state parties that it will enforce the fundamental rights laid down
therein. From a European perspective this concerns above all the EU’s Charter of Fundamental
Rights as well as the European Convention on Human Rights. In relation to the Charter of
Fundamental Rights, prevailing opinion has developed to the extent that it is sufficient for
a breach of public policy, even if the violation did not occur within the sovereign area of the lex
fori, if the breach manifests in another Member State of the EU.110 Thus, Dutch courts would

107 Germany and Switzerland have in recent years abandoned the anachronistic limitation to the protection of one’s own
citizens from foreign liability laws; see Art. 137(2) Swiss IPRG, Art. 40(3) German EGBGB.
108 Important international instruments in this area include the OECD Guidelines for Multinational Enterprises, the UN
Global Compact and the UN Guiding Principles on Business and Human Rights.
109 See, e.g. in the UK the Modern Slavery Act (2015), in France the Loi de vigilance (2017), in the Netherlands the Child
Labour Due Diligence Law (2019) and in Germany the Supply Chain Care Act (2021). A harmonized European
legal framework is currently being prepared. See also the older international approaches A Rühmkorf, Corporate Social
Responsibility, Private Law and Global Supply Chains (Edward Elgar 2015) 13ff.; A Beckers, Enforcing Corporate Social
Responsibility Codes (Hart 2015) 14ff.
110 K Siehr, ‘Der ordre public im Zeichen der Europäischen Integration: Die Vorbehaltsklausel und die EU-Binnenbeziehung’
in H Kronke/K Thorn (eds), Grenzen überwinden – Prinzipien bewahren, Festschrift für Bernd von Hoffmann (Gieseking
2011) 424, 428; M Stürner, ‘Europäisierung des (Kollisions-)rechts und nationaler ordre public’ in H Kronke/K Thorn
(eds), Grenzen überwinden – Prinzipien bewahren, Festschrift für Bernd von Hoffmann (Gieseking 2011) 463, 480;
Wurmnest (n 45) 470.

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not countenance a result whereby the application of a foreign law would violate the rights of
a concerned party in France.

The same must, in principle, apply for the ECHR.111 Alongside the EU fundamental rights 1-074
this is again a considerable extension of the scope of protection of human rights, as many more
states are party to the ECHR – currently 47 – than the EU. Switzerland, for example, is not
a member of the EU, though it is a signatory to the ECHR. But in terms of underlying values,
it would be absurd to look the other way in the case of a violation against a party in Switzerland
merely because the domestic connection is lacking, when in comparable situations a party living
in France would be protected via their fundamental rights under the EU Charter.

In consequence of these developments, there is a declining significance for the domestic con- 1-075
nection criterion in the public policy test. In any case when defending fundamental and human
rights the requirements are less stringent.112 It is only in relation to the defence of typically
domestic legal concepts where the requirement of a domestic connection makes sense; the
question then concerns the territorial scope of application which the respective legal institution
asserts for itself, i.e. whether it is also intended to prevail in cases which essentially take place
abroad.

F. LOOKING FORWARD

Public policy is the bugbear of private international law. In its breadth, lack of definition and 1-076
emotional loading, it is difficult to predict in advance. What is regarded as contrary to public
policy in other countries appears hidden behind a veil, through which we only get a partial and
sometimes distorted view.

The contributions in this volume should contribute to lifting this veil. They reveal that there 1-077
are more similarities than differences between the legal orders. The terminologies diverge from
each other in part; the weight attached to certain elements may be judged differently here
than there; and, of course, there is a huge breadth of cases which have already been judged as
contrary to public policy: from seemingly technical issues such as limitation periods all the way
to Heavy Metal music.113

Yet parallel developments are evident throughout. One of these tendencies which we examined 1-078
more closely at the beginning of this volume is the shifting function of public policy away from
an instrument primarily for the protection of public interests of common welfare to a bulwark
for the defence of individual fundamental and human rights. It has long been recognized that
public policy is an exceptional legal remedy which can only be invoked in cases of extreme vio-

111 See, eg. on French case law, the report from Pellegrini, Chapter 7 in this volume. See further J Kropholler, Internationales
Privatrecht (6th edn, Mohr Siebeck 2006) 253; G Fischer, ‘Schadensersatzansprüche wegen Menschenrechtsverletzungen
im Internationalen Privat- und Prozessrecht’, in J Goydke et al. (eds), Vertrauen in den Rechtsstaat – Festschrift für Walter
Remmers (Carl Heymanns 1995) 447, 454.
112 I Thoma (n 61) 1458; von Bar/Mankowski (n 5) § 7 para. 269; see also the examples from the Turkish (Chapter 17) and
French reports (Chapter 7).
113 See the Chinese report, Chapter 5 in this volume.

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lations. This has not been changed fundamentally with a shift in its most important groups of
cases. However, the defence of human rights is regularly such an extreme case, so that, at least
in this area, one can expect more instances of foreign laws being subjected to a public policy
test. As Lord Wilberforce has already stated: “conceptions of public policy should move with
the times”.114 Our time, with its rapid developments in many areas of social life, has brought
with it a whole series of new tasks for public policy, for which we must now seek the appropriate
responses.

114 Blathwayt v. Baron Cawley [1976] 1 AC 397.

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