The Dimensions of Public Policy in Private International law

Abstract

Public policy is both a ubiquitous and fundamentally important part of private international law, defining the limits of the tolerance of difference implicit in rules on choice of law and the recognition and enforcement of foreign judgments. It has, however, been frequently criticised for its uncertainty and discretionary character. This article looks at the justifications for limits on public policy in private international law, and considers three principles which should constrain the application of public policy – proximity, relativity and seriousness of breach. It then analyses the practice of English courts through the perspective of these three ‘dimensions’. While the courts do not expressly acknowledge these principles, they not only explain the majority of cases involving the application of (or refusal to apply) public policy in private international law, but also provide reasons why certain decisions have been considered unsatisfactory. The argument developed in this article thus suggests an analytical framework through which the application of public policy in private international law might be made more certain, principled and justifiable.