The Equality Pillar

2018 ◽  
Author(s):  
Sagi Peari
Keyword(s):  
Public Policy ◽  
Choice Of Law ◽  
Formal Operation

This chapter elaborates on the second foundational pillar of CEF—the “Equality Pillar” as a crystallization of the subsidiary version of the better law approach. First, through exposition of the Equality Pillar’s three constituents (Innate Equality, Barbarism, and State Equality), it provides normative meaning to better law as a subsidiary rule, and as such sets out substantive limits on the formal operation of choice-of-law rules. Secondly, it returns to the challenges that have been mounted against all versions of better law and shows how CEF’s vision of better law is immune to those challenges. Finally, it suggests drawing a parallel between the subsidiary version of better law and such notions as the “evil laws” phenomenon and public policy doctrine.

CONTRACTS, ILLEGALITY AND COMITY: RALLI BROS REVISITED

2020 ◽  
Vol 79 (1) ◽  
pp. 64-90
Author(s):  
William Day
Keyword(s):  
Public Policy ◽  
Policy Rule ◽  
Choice Of Law ◽  
Considerable Uncertainty ◽  
Rome Convention ◽  
Governing Law ◽  
Rome I

AbstractThere has always been considerable uncertainty about the nature and scope of the rule by which contractual performance is excused if illegal in the place of performance, even though performance would not be illegal by the contract's governing law. This article revisits the so-called “Ralli Bros rule” and looks at how the scope of the rule has been developed and its nature misunderstood. It argues that the rule is neither a choice of law rule nor part of the rules discharging a contract for frustration but is instead a public policy rule favouring judicial abstention for reasons of comity. This has implications for how the rule interacts with the choice of law rules for contracts under the Rome Convention and the Rome I Regulation.

scholarly journals Choice of Law: A Fond Farewell to Comity and Public Policy

1986 ◽  
Vol 74 (4) ◽  
pp. 1447 ◽  
Author(s):  
Holly Sprague
Keyword(s):  
Public Policy ◽  
Choice Of Law

Rule and Reason in the Common Law of Foreign Judgments

1999 ◽  
Vol 12 (2) ◽  
pp. 193-221
Author(s):  
Celia Wasserstein Fassberg
Keyword(s):  
Public Policy ◽  
Procedural Justice ◽  
Common Law ◽  
Minimal Level ◽  
Choice Of Law ◽  
The Public ◽  
Natural Justice ◽  
Foreign Law ◽  
The Common ◽  
Foreign Judgment

Two tenets are central to the Common Law rules for enforcement and recognition of foreign judgments. The first is that, subject to public policy, the enforcing court does not review the substance of the decision; in other words, mistake is no defence. The second is that, apart from ensuring that the judgment was not obtained by fraud or through a breach of the requirements of natural justice, the prime consideration for enforcement is whether the foreign court was competent to issue the judgment; in other words, whether it had jurisdiction.These two tenets are eminently reasonable. A foreign judgment is after all both a judgment—like a local judgment, and foreign—like a right acquired under a foreign law. The validity of local judgments and of foreign unadjudicated rights depends on jurisdiction: local judgments depend on adjudicatory jurisdiction (often defined in the rules of service); foreign rights—on legislative or prescriptive jurisdiction (the jurisdiction of a system to regulate the situation substantively, as defined in choice-of-law rules). It thus seems appropriate to require jurisdiction of foreign judgments too. Local judgments, once final, are never subject to review, and can be attacked on the grounds that they were obtained by fraud only exceptionally. Rights acquired under a foreign law cannot be refused enforcement because of their substance and are subject only to the public policy exception. It thus seems appropriate to immunise foreign judgments from substantive review too. Foreign judgments—adjudicated rights—are of course different from foreign unadjudicated rights in that they are the product of a process. So, as in the case of local judgments, it should nonetheless be possible, in limited circumstances, to examine whether the process was tainted by fraud. So too, they differ from local judgments in that the process from which they emerge is not a local one; it cannot be relied upon in the same way as locally controlled and institutionalised procedures. It thus seems reasonable that, while prevented from reviewing the substance of a foreign decision, the court should be permitted to require of it a minimal level of procedural justice.

Public Policy in the Cayman Islands: Driving a Cart and (Unruly) Horses Through the Recognition Legislation

2001 ◽  
Vol 50 (1) ◽  
pp. 133-143
Author(s):  
Mitchell C Davies
Keyword(s):  
Public Policy ◽  
Common Law ◽  
Direct Result ◽  
Private International Law ◽  
Cayman Islands ◽  
Choice Of Law ◽  
Applicable Law ◽  
Safety Mechanism ◽  
Foreign Law ◽  
English Law

Resort to public policy in order to impugn a foreign judgment or to negate the effects of the application of foreign law has correctly been given a narrow compass by the English courts. In the sphere of common law choice of law rules in contract and tort this approach has been encouraged by the in-built forum bias of the rules themselves which reduces significantly the need for circumvention of foreign law. At common law a tort, for example, is never actionable in England unless the cause of action is recognised as a tort by English law.1 The common law choice of law rules in contract, ostensibly less parochial, are so open textured however as to leave a judge minded to apply English law rarely without legal justification for doing so. An increase in the resort by English courts to the safety mechanism of public policy is therefore anticipated by most commentators to be a direct result of placing the choice of law rules in contract and tort on a statutory footing, respectively, by the Contracts (Applicable Law) Act 1990 and the Private International Law (Miscellaneous Provisions) Act 1995.2 What was achieved openly through an application of the rules themselves may now be arrived at less ingenuously by more indiscriminate resort to the mechanism of public policy. At one extreme a danger exists that public policy may become a badge of partiality resorted to for no better reason than to protect the perceived innate superiority of the forum's rules. At another, a misplaced desire to promote international comity may lead to an exclusion of public policy where it ought properly to be invoked; a balance must be struck. The delicate question of the correct weight to be accorded to the doctrine of public policy recently fell to be determined by the Grand Court of the Cayman Islands3 in Wheeler v. Wheeler.4

The Grounds for Setting Aside Arbitral Awards under the Egyptian Arbitration Code: Unresolved Choice of Law Issues and Unwanted Extraterritorialism

2018 ◽  
Vol 32 (1) ◽  
pp. 33-59
Author(s):  
Yehya Ikram Ibrahim Badr
Keyword(s):  
Public Policy ◽  
Choice Of Law ◽  
Arbitral Award ◽  
Mandatory Rules ◽  
Scope Of Application ◽  
The Law

Abstract This article analyses the choice of law issues associated with setting aside an arbitral award under the Egyptian Arbitration Code (the Code), the challenges posed by applying the Code to arbitration conducted outside Egypt, and the lack of a clear criterion to define the Code’s scope of application. Choice of law issues – such as the law governing the parties’ capacity, the law governing the agreement to arbitrate and the applicable curial – are not addressed by defined choice of law rules. Under Egyptian law, there are several conflicting choices of rules. Finally, the article focuses on the Egyptian courts’ tendency to apply Egyptian law extraterritorially, either to protect Egyptian public policy or to apply Egyptian mandatory rules to determine the procedural validity of the arbitral award and the arbitration proceedings in general.

Introduction

2019 ◽  
pp. 1-16
Author(s):  
V.C. Govindaraj
Keyword(s):  
Public Policy ◽  
International Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Conflict Of Laws

This introductory chapter begins with an overview of the raison d’etre for the existence of this particular branch of law—conflict of laws or private international law. It then discusses the appropriateness of the title ‘conflict of laws’, ways and means of avoiding conflicts, unification of international law, unification of rules of choice of law, the evolution of conflict of laws in retrospect and in prospect, modern theories of conflict of laws, the doctrine of comity, the doctrine of public policy, and the theory of vested or acquired rights.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 38 Taiwan: Taiwanese Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Tsai Hua-Kai
Keyword(s):  
Public Policy ◽  
International Law ◽  
Primary Source ◽  
Private International Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Applicable Law ◽  
The Hague ◽  
Set Up ◽  
Domestic Law

This chapter highlights Taiwanese perspectives on the Hague Principles. The Act Governing the Choice of Law in Civil Matters Involving Foreign Elements is the primary source of choice of law rules in Taiwan’s private international law (Taiwanese PIL Act). Party autonomy is set up as a prioritized connecting factor for the choice of law rules on contracts under the Taiwanese PIL Act. Due to the fact that Taiwan is not a Member State to most of the international organizations such as the Hague Conference on Private International Law, the source of Taiwan’s private international law is mainly domestic law. Being a non-binding instrument, the Hague Principles can be taken into consideration in Taiwan as an informal source of choice of law rules on contracts. However, the Hague Principles do not provide for rules determining the applicable law in the absence of the parties’ choice. Article 20 of the Taiwanese PIL Act is, in this respect, more comprehensive. Nonetheless, the Hague Principles may be used to interpret, supplement, and further develop rules only to Article 20(1) concerning party autonomy and the limitation on that autonomy such as public policy.

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