Mechanism of Application of the Public Policy Clause as a Ground for Limitation of the Application of Foreign Law in Private International Law

Abstract

The article analyzes the essence and peculiarities of the implementation in practice of the mechanism of application of the public policy clause (ordre public) as a basis for limiting the effect of foreign law in private international law. The author argues that the introduction of a unified mechanism for the application of the public policy clause as a basis for restricting the effect of foreign law is in the interests of both the international community and individual states. The sources for determining the constituent elements of the mechanism are regulations (international and national) and judicial (arbitration) practice. Based on their study, it is summarized that the mechanism of application of the public policy clause is a complex legal remedy, the proper functioning of which is impossible without the jurisdiction to take preliminary action to invoke the conflict of laws the first sends to. It is established that the basis for the application of the public policy clause in order to limit the effect of foreign law in the country of the court is a violation of public policy. Discussions arise about the normative consolidation and the peculiarities of establishing conditions in law enforcement activities, the existence of which allows the jurisdictional body to apply such reservations. These conditions, although they may be considered in isolation, function as a whole, forming an interconnected system of restrictions and principles designed to ensure that the court complies with the minimum substantive and formal requirements for the application of the public policy clause. The conditions for applying the reservation in cases of exclusion or restriction of foreign law traditionally include: 1) contradiction of public policycannot be stated by the court on the basis of inconsistency or difference of foreign law from the provisions of public policy; 2) the incompatibility of the mentioned consequences must be, on the one hand, obvious and, on the other hand, sufficiently and consistently substantiated by a court or arbitration tribunal; 3) the difference between the legal, political or economic systems of the relevant foreign state from the systems of the court state cannot serve as a justification for refusing to apply the law of a foreign state.