Question

Considering the diversity of values in the comity of nations, reassess the place of public

policy in international judicial systems and robustly establish your opinions as to what should

be the ideal standard for policy consideration.

The place of public policy in among forums in the private international law space is

indefeasible. Notably, the concept of public policy or ordre public has metamorphosed over

the years from the fifteenth-century concept as just based on the personal whims and

prejudices of legal minds to denote the reserved power of the court to refuse or allow a claim

or cause of action in the absence of a precedent or statutes regulating the primary cord of

discordance before the court. Public policy generally refers to a set of actions, rules,

principles, laws, and behaviour conceived by a vast majority of people within a country and

channeled towards addressing matters of public interest.

Every sovereign state has its peculiar political, social, economic and cultural history which

contributes to the values inherent in every legal system, it is therefore a necessary corollary

that states have a codified guarantee to give effect to their public policy if they regard it as

endangered.1 Within the context of private international law, the main function of ordre

public is to protect fundamental values of the forum states against unacceptable results which

may originate either from the application of a foreign law or from the recognition of a foreign

judgment.2

DEMYSTIFYING THE APPLICATION ON PUBLIC POLICY IN PRIVATE

INTERNATIONAL LAW

Public policy provides a national backdrop in the application of foreign laws and judgments

entailing the right to set aside conflict rules to reach an equitable decision that is more in tune

1
Eva Susanne Saring, The Public Policy Exception in Private International Law: Necessary National
Safeguard or Superfluous due to Harmonization? (June 2023) DOI:10.13140/RG.2.2.32206.43844.
2
Martin Gebauer and Felix Berner, ‘Ordre Public (Public Policy)‘, Max Planck Encyclopedia of
International Law
https://opil-ouplaw-com.proxy-ub.rug.nl/display/10.1093/law:epil/9780199231690/
law9780199231690e1448?rskey=c5my97&result=1&prd=MPIL Para 1.
with the justice or moral sense as locally conceived within the forum. Within any society,

there are certain channels through which there may be a permeation of outside values and

standards into the system- one of them is the courtroom. In view of this, every country would

ensure that its judicial system vehemently probes any case law in the form of judgments

whose recognition, application and enforcement would adversely affect the system. Domestic

matters do not pose any conflict in this regard as it is the mere discrepancy between the

current state of the municipal law and the court's perception of what the law ought to be. This

important difference sharply divides the two forms of public policy.3

Public policy runs as an exception to the international applied principles of Comity,

Obligation and Recognition which governs the relationship between various countries. Upon

this position, a refusal to admit the judgment of another country is validated. Within cross-

border contractual arrangements and regulating the rapport among forums is the European

Rome I Regulation. Article 9(1) defines mandatory rules as:

provisions the respect for which is regarded as crucial by a country for safeguarding

its public interests, such as its political, social or economic organisation, to such an

extent that they are applicable to any situation falling within their scope, irrespective

of the law otherwise applicable…

To simply put, mandatory rules are overriding mandatory rules are rules of the forum which

are so important they must be applied irrespective of the otherwise applicable foreign law. 4 As

have been previously established in this work, courts retain the power to refuse to apply an

otherwise applicable foreign law if such application would be contrary to New Zealand’s

fundamental public policy. Hence, it is no aberration to conclude that the public policy

3
Cheatham, American Theories of Conflict of Laws: Their Role and Utility, 58 Harvard Law Review
361, 371 (1945).
4
Nelson Enonchong "Public Policy in the Conflict of Laws: A Chinese Wall around Little England" (1996) 45 ICLQ
633 a
exception runs negatively to the application of mandatory rules by the exclusion of certain

foreign laws through the exercise of judicial restraint.

Overtime, it’s been observed that there has been a large disparity among the decisions of

judges rendered based on the principle of public policy. It is owing to the indeterminate and

vague construct of the concept of public policy in itself- Fender v St John Mildway. In

Richardson v Mellish5, Judge Burrough protests against arguing too strongly upon public

policy. In his words, “It is a very unruly horse and once you get astride it, you never know

where it will carry you." Previous judgments towed the path where judicial minds decide

based on their personal construct of what they deemed prejudicial to the nation and not

necessarily taking in the totality of the forum’s public interest.

To invoke the exception, it is not enough for the defendant to plead that the foreign decision

is different from the law of the forum or that if tried in the forum’s court, a different decision

will most likely be reached- Yahoo Inc v La Liga; Kuwait Airways Corp v Iraqi Airways

Co6

Approaching a different angle, the court of appeal in the recent case of New Zealand Basing

Ltd v Brown7 held that the current exception has a high threshold and requires a breach of an

absolute or universally shared value before it will be invoked. The usage of the word

“absolute” places an arbitrary focus on the fact that whatever it sought to be the ground for

refusal has to be common to all. Taking into consideration the near impossibility of such, it is

asserted that such principle does not necessarily have to be accepted by all citizens the forum

seeking to renege from enforceability of the law or judgment, but if the standard is seen by a

larger number of people and any derail would cause harm to a substantially incontestable

public, the court can uphold same.

5
(1824) 2 Bing 229 at 252.
6
[2002] UKHL 19
7
[2016] NZCA 525, [2017] 2 NZLR 93 at [65]
In New Zealand’s case, the contention was whether the Court of Appeal was correct to

conclude that by selecting a different legal jurisdiction to govern their relationship, the parties

could contract out of the right in the Employment Relations Act to be free from dismissal and

discrimination based on age? Two Auckland-based pilots, Brown and Sycamore were

employed by a Hong Kong-registered subsidiary of Cathay Pacific to fly between Auckland

and Hong Kong. The employment contract, expressed to be governed by the law of Hong

Kong, provided for a mandatory retirement age of 55. However, pursuant to the Employment

Relations Ac 2000 (NZ), the pilots could not be required to retire until they had reached the

age of 65. The pilots were terminated due to their age, and the relevant employment

agreements stated that Hong Kong law would govern. The pilots brought a personal

grievance claim against their (Cathay Pacific) and in reliance on the New Zealand Act. The

Supreme Court ruled that the statutory right against age discrimination applies, and that the

contractual choice of law is irrelevant. The court found that the pilots' rights not to be

discriminated against are independent of their employment agreements and Hong Kong law.

Hence, the it was unanimously held that the New Zealand Act applied to the plaintiffs’ claim

and supposed age of retirement was 65.

In Mary Carpenter v Secretary of State for the Home Department 8, Mrs. Carpenter was a

Philippines national legally residing in the UK for six months starting from 18 September

1994. She overstayed her time in the UK, not asking permission to stay longer, and on 22

May 1996 married Peter Carpenter, a UK national. Mr. Carpenter runs a business, established

in the UK, but with clients from all over Europe, requiring him to travel frequently. Mrs.

Carpenter applied for a right to remain in the UK after she got married, but her application

was refused, and the Secretary of State sought a deportation order against her. Mrs. Carpenter

appealed this decision and claimed she was entitled to remain in the UK based on EU law.

Her husband, so she argued, conducted business throughout the internal market and was able
8
[2002] ECR I-6305
to provide these services because she stayed home looking after the children from Mr.

Carpenters’ first marriage. In its judgment, the Court of Justice of the European Union

(CJEU) links the exercise of the fundamental freedom of Mr. Carpenter to the fundamental

right to a family life. Such right is also protected by Article 8 ECHR and a Member State

wishing to invoke a reason of public interest, such as public policy, to justify restricting a

fundamental freedom such as the freedom to provide services, may do so only if that measure

is compatible with the fundamental rights that the CJEU ensures.

Recommendation of Standard for Public Policy Consideration

Contrary to the legal assertion in New Zealand Basing Ltd v Brown that the principle upon

which a foreign law would be rejected has to be absolute, it is recommended that the requisite

standard to be laid is that the policy must still be fundamental to the forum and needs to

convey “the community’s sense of morality” that runs through “the fabric of society”9.

A nation ought not reject a law because the said judgment sought to be enforcement is

different from what is obtainable in the nation’s law and not that it is illegal. This is against

the judicially opined assertion that the forum can enforce a foreign death act claim only if the

foreign act is substantially similar to the local statute- Leonard v. Columbia Steam10. The

requirement of similarity could be made so exacting as to forbid recovery under the foreign

act unless the local statute was almost identical to the sister state's statute. In St. Louis I.M &

S. Ry. v. McCormick a Texas case of 1888, refused recovery on a claim based on an

Arkansas wrongful death act which differed from the Texas law only on such matters as who

might bring the action, the distribution of the recovery, and whether or not exemplary

damages might be awarded.

9
Boardwalk Regency Corp v Maalouf (1992) 88 DLR
10
84 N.Y. 48 (1881)
In declining or accepting a foreign law, it has to be tailored to meet the peculiarities of the

society in which it is to be applied11. For example, the Sharia law and religion in majority of

the states in Northern Nigeria are adverse to alcohol consumption. Hence, it would be

erroneous for the courts within that jurisdiction to recognize and enforce a judgement given

based on a foreign law that has no restrictions or reserves on the issue of alcohol.

In the same light, a court should not refuse the application of a judgment when it would add

to the judicial or legal tenets obtainable within a society. A New Jersey court declined to

grant an accounting to a member of a partnership which carried on lotteries, even on the

assumption that all of the transactions involved occurred in states where they were legal-

Watson v Murray12. The Court of Civil Appeals of Texas refused to grant recovery on notes

given for purchasing stock in a Mexican gambling and liquor establishment- Ayub v

Saloman.13 The prohibition laws of Texas and the United States were said to set a public

policy forbidding the enforcement of the notes even though the notes were not alleged to be

made or to be payable in the United States- Ayub v Automobile Mortgage.14 The only

ground for departure should be where regardless of contributing to the system in the sense

that there are similarities, the substance of the judgment still possesses within itself an ideal

that affects some fundamental public policy.

In addition, the courts must weigh the underlying principle of proximity between the dispute

and the forum, as well as party expectations, comity and justice, to determine whether they

support invoking the exception. For instance, if the parties’ expectations best met by applying

foreign or domestic law, it is advisable to follow suit so far it does not undermine the forum’s

interest still. Are there comity concerns justifying the application of foreign law, or does the

absence of such concerns support invoking the exception? Where there is greater proximity to

11
Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) per William Young J
12
23 N.J. Eq. 257 (Ch. 1872).
13
252 S.W. 291 (Tex. Civ. App. 1923).
14
252 S.W. 287 (Tex. Civ. App. 1923)
the forum, the parties’ expectations may be better met by applying the lex fori and the strong

interest of the domestic state in giving effect to its important policies may outweigh the

foreign state’s weaker interest in having their law applied.15

Conclusively, Lord Cardozo’s judgement is of primary essence to the idea of public policy in

the private international law scenery. He asserted in Loucks v Standard Oil Co that for the

courts to correctly depart from the enforcement of a foreign judgment based on contravention

of public policy, it must violate "some fundamental principle of justice, some prevalent

conception of good morals, some deep-rooted tradition of the common weal."

15
Stephanie Knowler, ‘Taming the Unruly Horse: The Public Policy Exception in Private International Law in the
Context of Human Rights’