scholarly journals PUBLIC POLICY AND ITS ROLE IN CONTEMPORARY CIRCUMSTANCES

2019 ◽  
Vol 1 (41) ◽  
Author(s):  
Valerija Šaula
Keyword(s):  
Public Policy ◽  
International Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Contemporary World ◽  
Foreign Law ◽  
Insurmountable Obstacle

The paper deals with the issue of a public policy, predominantlyas an instrument in the area of Private International Law, though it can be usedin other fields of law. Describing the origin and a role of a public policy as aprotecting mechanism in the process of application of foreign law, applicableunder conflict of laws rules, in the process of recognition of foreign judgmentsand arbitral awards, as well as a mechanism for refusing to provide internationallegal assistance, the author contemplates about the role and place of thisinstitute in contemporary world, when the differences between the national legalsystems rarely can be seen as insurmountable obstacle for their application.

The Lex Fori

2019 ◽  
pp. 172-194
Author(s):  
Adrian Briggs
Keyword(s):  
Public Policy ◽  
United Kingdom ◽  
International Law ◽  
Private International Law ◽  
English Court ◽  
Conflict Of Laws ◽  
The United Kingdom ◽  
Foreign Law ◽  
The Law

This chapter examines of the role of the lex fori in English private international law before proceeding to examine the rules of the conflict of laws applicable in an English court. Issues for which the rules of the conflict of laws select the lex fori as the law to be applied include grounds for the dissolution (as distinct from nullity) of marriage, even if the marriage has little or nothing to do with the United Kingdom; or settlement of the distribution of assets in an insolvency even though there may be significant overseas elements. Where the rules of the conflict of laws select a foreign law, its application, even though it is proved to the satisfaction of the court, may be disrupted or derailed by a provision of the lex fori instead. The remainder of the chapter covers procedural issues; penal, revenue, and public laws; and public policy.

Public Policy in the Conflict of Laws: a Chinese Wall around Little England?

1996 ◽  
Vol 45 (3) ◽  
pp. 633-661 ◽  
Author(s):  
Nelson Enonchong
Keyword(s):  
Public Policy ◽  
International Law ◽  
Common Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Foreign Law ◽  
The World ◽  
The Common ◽  
As If

The English courts have often incurred the reproach of undue insularity in their attitude to foreign law.1 A common gripe is that they have failed to recognise that there is a world elsewhere, and that England is not “a legal island”.2 Savigny, we are told,3 was moved to lament over the fact that although in other branches of knowledge there was an internationalist outlook in England, in the field of jurisprudence alone it “remained divided from the rest of the world, as if by a Chinese wall”. Recently it has been suggested that “The foundation of this Chinese wall… lay … in an unquestioning belief in the superiority of the common law and its institutions, at least in England.”4 It would be unsafe to affirm that the charge of insularity has always been without foundation. The “Little England”5 attitude of mind, Roskill LJ reminds us,6 was “once proclaimed in the phrase ‘Athanasius contra mundum’”. And it should occasion no surprise that the examples commonly advanced to substantiate the charge are usually drawn from private international law.7

scholarly journals Conflict of Laws: Jurisdiction of the Court and Choice of Law in Cross-Border Matrimonial Suit in India

2017 ◽  
pp. 80-87
Author(s):  
Indrani Kundu
Keyword(s):  
International Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Cross Border ◽  
Civil Union ◽  
Foreign Law ◽  
Marriage Laws ◽  
The Difference ◽  
Domestic Law ◽  
Legal Procedures

Marriage, a civil union between two persons, involves some legal procedures which determine the rights and liabilities of parties in such civil union. Conflict of marriage laws is the conflict of laws governing status and capacity to marry defined by personal laws of parties to the marriage. Rules of Conflict of Laws are set of procedural rules which determine A) which legal system will be applicable to a given dispute, & B) which Court will have jurisdiction to try the suit.In the words of Dicey and Morris, rules of Private International Law do not directly determine the rights and liabilities of persons, rather it determines the jurisdiction of Court and the choice of body of law i.e. whether by the domestic law or by any foreign law, the case will be decided. This paper, by adopting doctrinal approach, seeks to find the criteria for Indian court to exercise jurisdiction in cross border matrimonial suit. Further, it endeavors to find out the difference between term ‘domicile’ and ‘residence’.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 16 Morocco: Moroccan Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Zaher Khalid
Keyword(s):  
Public Policy ◽  
International Law ◽  
Case Law ◽  
Vital Role ◽  
Private International Law ◽  
Statutory Law ◽  
The Hague ◽  
The Law

This chapter examines Moroccan perspectives on the Hague Principles. In Morocco, the sources of private international law applicable to international commercial contracts are both of a national and an international nature. International sources include mainly treaties and, to a lesser extent, international customs to which the Moroccan courts may refer in particular cases. National sources are statutory law, case law, and scholarly writings. Case law has always played a vital role in the development and the interpretation of the rules applicable to international commercial contracts. It is indeed the role of the courts to determine the scope of law chosen by the parties and to delimit the boundaries of international public policy as a limit to the application of the law chosen by the parties. Moroccan courts consider international customs as important sources in respect of international contracts and arbitration. Having frequently used the universally accepted principles of private international law, Moroccan courts could easily draw on the Hague Principles to find solutions to certain questions that have not been addressed by the legislature.

Part XI Public Policy and Abuse of Process, 32 Public Policy Rules in English Arbitration Law

2016 ◽  
Author(s):  
Brekoulakis Stavros
Keyword(s):  
Public Policy ◽  
International Law ◽  
Historical Context ◽  
Careful Analysis ◽  
Private International Law ◽  
Policy Rules ◽  
Legal Rules ◽  
Legal Principle ◽  
And Function

This chapter argues that the doctrine of public policy currently adopted by legal discourse in arbitration is conceptually and methodologically confusing, and outdated. It is conceptually confusing because there is usually no explanation about how the content of public policy is ascertained or whether the doctrine functions as a legal principle or a set of legal rules. The doctrine of public policy, as a structured set of legal rules, can be better conceived of as a doctrine of national law. The rules of public policy can also be ascertained from a careful analysis of the historical context and jurisprudential development of the doctrine. The chapter first looks into the concept and function of public policy in English law and jurisprudence. It then focuses on the role of public policy in English private international law, before finally ascertaining the rules of public policy in English arbitration law.

Part VI Recurrent Issues of Harmonization, 20 The Sphere of Application of a Convention; the Role of the Conflict of Laws; Determining the Connecting Factor; Co-Existence and Conflicts of Instruments

2015 ◽  
Keyword(s):  
International Law ◽  
Past Experience ◽  
Private International Law ◽  
Commercial Law ◽  
Conflict Of Laws ◽  
Key Issues ◽  
Proper Design ◽  
The Impact

This chapter and the next two examine certain key issues which one may describe as the ‘general doctrines’ of transnational commercial law. In particular, the inter-relationship with rules of conflict of laws (private international law), the different function of the ‘connecting factor’ as well as the impact of the choice of a broader or narrower sphere of application are discussed in the light of past experience and current legislative preferences. Moreover, the ever increasing number of transnational commercial law instruments leads inevitably to issues of the proper design of their co-existence and the solution of conflicts: which are the rules determining which instrument shall prevail over others touching upon the same or neighbouring issues?

The Conflict of Laws in India

2019 ◽  
Author(s):  
V.C. Govindaraj
Keyword(s):  
International Law ◽  
Hague Convention ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Contemporary World ◽  
Territorial Conflicts ◽  
Critical Issues ◽  
Recent Developments ◽  
The Subject ◽  
The Law

Conflict of laws, or private international law, is an increasingly important subject of study due to increasing movement and relocation of large number of people from one jurisdiction to another for personal and professional reasons. This book is a detailed and up-to-date study of conflict of laws and focuses on its three main areas: the law of obligations, law of property, and law of persons. It provides fresh perspectives on the subject and analyses its significance in the dynamic contemporary world. The work not only lucidly examines the inter-territorial conflicts but also lays a special emphasis on inter-personal disputes in the Indian context. It evaluates the role of various international instruments and conventions including The Hague Convention on private international law designed to resolve international conflicts. The book also discusses critical issues such as habitual residence, domicile, and obligations for shaping foreign contracts and torts. This revised edition elaborates on the recent developments in two areas of the subject, namely Muslim law and the law relating to guardianship.

7 Comity

1986 ◽  
Author(s):  
Mann F A
Keyword(s):  
Public Policy ◽  
International Law ◽  
Rule Of Law ◽  
Private International Law ◽  
International Affairs ◽  
Administrative Discretion ◽  
Conflict Of Laws ◽  
Public International Law ◽  
The Public ◽  
Opposite Extreme

Comity is one of the most ambiguous and multifaceted conceptions in the law in general and in the realm of international affairs in particular. It may denote no more than that courtoisie international, that courtesy which ships observe when they salute each other or which is usual among diplomats or even judges. At the opposite extreme it may be a synonym for public international law. Or it may mean, not a rule of law at all, but a standard to be respected in the course of exercising judicial or administrative discretion. Or it may be the equivalent of private international law (or the conflict of laws) or at least indicate the policy underlying particular rules or what is more generally known as public policy. Or it may be used to justify the existence of the conflict of laws or the origin of its sources or the public policy pursued by it. In most cases the meaning of comity is coextensive with public international law.

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