Report No. 65

III. Conflict of Laws-Public Policy on the Continent

17.12. Public policy on the continent in conflict of laws.-

On the continent, in the field of conflict of laws, the principle of public policy is of great importance. It appears that under this rubric, the application of foreign legal rules is barred where such application would conflict with the fundamental moral ideological, social, economic or cultural standards of the forum, or where it is necessary that the domestic legal rules should be unconditionally and absolutely applied, or where the principle of the foreign legal rule conflicts with the mandatory rules of the law of nations, or international commitments of the State of the forum, or the requirements of justice, as generally recognised by the international legal community.

17.13. An early "statutist" version of the "orders public" can, perhaps, be seen in the refusal to apply statutes odiosa, and an equivalent may be seen in Huber's cautious and incidental reliance on the overriding interest of ordre public against such modest universality as conflicts law based on mere comity could command.1 But only Mancini's all embracing principles could move the ordre public into the centre of attention1.

1. Ehrenzweigh Conflict of Laws, (1962), p. 342.

17.14. Example from Eastern Europe.-

In the Russian Civil Code1 for example2, it is provided that "foreign law cannot be applied if it is in conflict with the foundations of the Soviet system."

According to the Hungarian law3 on marriages, foreign law cannot be admitted "if it infringes the Constitution or a rule of Hungarian law which insists on absolute application." Again, according to the Hungarian Law of Civil Procedure4 the decision of a foreign Court cannot be recognised in Hungary, if recognition infringes the Constitution or a rule of Hungarian law which insists on absolute application.

1. Section 568, Civil Code of Russian Federation, (June 11, 1964).

2. As to Russia, see, further, para. 17.15, infra.

3. Section 45, Hungarian Decree No. 23 of 1952-Marriage, family relations and guardianship.

4. Decree No. 22 of 1952 (Code of Civil Procedure), section 16.

17.15. It has been stated by William Butler1:-

"The conception of ordre public, or public policy as the somewhat narrower principle is known in common law countries, has not produced fundamental ideological cleavages among continental European and Anglo-American jurisdictions, although many jurists have justly been apprehensive of its inchoate and potentially unlimited scope. To Soviet jurists, however, the option of excluding the application of foreign law deemed incompatible with the essential principles of justice and morality of the forum seemed to be a tailor made excuse for refusal to recognise the social and legal reforms wrought by the revolution of 1917.

And indeed this fear appeared to be confirmed when, particularly in the interwar period, many Western courts declined to give extra-territorial effect to Soviet nationalization decrees partly on the basis of public policy. Soviet courts, of course, might have retaliated by framing their own doctrine, of ordre public. But there is an aversion to judge-mades law in the U.S.S.R., and public policy seldom is cited in reported Soviet decisions."

1. William e. Butler (Reader in Comparative Law, University of London), Book Review of Andre Carnefsky Public Policy in Soviet Private International Law, (1970) (2nd Edn.), Vol. 18, AJCL 604.

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