Policy Exception Research Articles

Retrospective Assessment of U.S. Army Aviator Anthropometric Screening Process.

INTRODUCTION: The current U.S. Army aviator anthropometric screening process for rotary-wing cockpit compatibility was codified over 30 yr ago. Critical to the process are the anthropometric standards that define what is acceptable for U.S. Army flight school applicants. The purpose of this study was to assess and optimize the efficiency of the standards in screening for anthropometric cockpit compatibility while maintaining safety.METHODS: A retrospective analysis was performed. Anthropometry and disposition data of flight school applicants from 2005 to 2014 were taken from the Aeromedical Electronic Resource Office database to determine efficiency of the process. Data on mishaps from 1972 to 2017 were retrieved from the Risk Management Information System database to determine the safety benchmark of the existing process, to which adjusted standards would be held. Adjustments to standards were modeled that would more efficiently pass applicants over the period studied without exceeding the established acceptable safety level.RESULTS: There were 40,136 (98.28%) applicants who passed the standards, while 702 (1.72%) failed. Most (98.52%) applicants who failed the standards and applied for an anthropometry exception to policy (ETP) received one. The models would pass up to 396 (99.25%) applicants who received ETPs without exceeding the established number of mishaps attributable to the anthropometry standards, which was found to be zero.DISCUSSION: The screening process is efficient and effective, but could be improved. Adjusting the standards could increase process efficiency by passing more applicants during their flight physical and widening the applicant pool, while maintaining the current level of safety.Moczynski AN, Weisenbach CA, McGhee JS. Retrospective assessment of U.S. Army aviator anthropometric screening process. Aerosp Med Hum Perform. 2020; 91(9):725731.

Legal Protection Against Retaliatory Firing Improves Workplace Safety

Workplace safety policies are designed to ensure that employers internalize the costs of injuries, but employers can undermine these policies with threats of dismissal. We show that states' adoption of the public policy exception to at-will employment---an exception forbidding employers from discharging workers for filing workers' compensation claims or whistleblowing about illegal conditions---led to a substantial reduction in serious injuries. The widespread adoption of the public policy exception explains 13 percent of the overall decline in fatal injury rates between 1979 and 1994. The exception averted more injuries at unionized workplaces than at non-unionized workplaces.

Geçici Koruma Altındaki Suriye Vatandaşlarının Çocuk Yaşta Evliliklerinin Mukayeseli Hukuka ve Türk Hukukuna Göre Geçerliliği

Due to the increasing numbers this article focuses on the legal aspects of child marriages contracted by Syrians under “temporary protection” in Turkey. In this context, the legal issues regarding the determination of applicable law to the validity of child marriages conducted in Turkey or abroad by the Syrians will be investigated within the framework of Turkish Private International Law with a comparative law perspective. Among these legal issues, special emphasis will be put on the governing law of the personal status of Syrians in Turkey since they are granted “temporary protection status” and not recognized as “refugees” under Turkish law. Another special emphasis will be put on the public policy (ordre public) exception during the application of Syrian law and rules on marriage age and the role of “the protection of the best-interests-of-the-child” principle. Furthermore the impact of the non-recognition of child marriages will be explored in the context of “the right to respect for family life” of ECHR Art 8. In addition, the legislative measures recently adopted to combat and prevent the recognition of child marriages under Swiss, Dutch and German laws will be revealed. These legislative measures, especially those aimed at eliminating the public policy exception in determining the applicable law to the validity of child marriages contracted abroad will be analyzed. An evaluation will be reviewed to decipher whether they can be considered as the next steps to be adopted by Turkish law.

The Public Policy Exception Under the New 2019 HCCH Judgments Convention

The public policy exception is inherently a fluid device. Its content is basically left to each State. A shared public policy is an exception. Therefore, the obligation of uniform interpretation, as provided in Article 20 of the 2019 Judgments Convention, will have an inherent limit here. Moreover, the Convention leaves some important issues, including procedure, to national rules. Each requested State retains a discretion to invoke the Convention grounds of refusal in a concrete case, and on whether to make an ex officio inquiry or have the parties prove those refusal grounds. The Convention also provides for the concrete applications of the public policy exception, following the model of the 2005 Choice of Court Convention. Here, a purely grammatical reading may create some peripheral problems, especially with the specific defences of conflicting judgments and parallel proceedings. Solutions may be found in the method of purposive interpretation and some general principles, particularly the evasion of the law and the abuse of rights, before resorting to the public policy defence.

The Role of Public Policy in the Enforcement of Foreign Custody Judgments: An Example of Joint Custody in Turkish Law

Societies transfer their basic values to new generations through child custody within the family. Therefore, bringing up children in healthy families is beneficial to society. Despite the importance of maintaining the sustainability of the family, which is the basic unit of society, when family sustainability is not possible, a basic duty of the courts must be to provide the best custody model for the welfare of the child after the dissolution of a marriage. Studies have shown that children have a better psychological state and can more easily overcome the trauma of divorce when the courts rule for joint custody than when the courts rule for sole custody. Joint custody, provided for in many legal systems, is not regulated in Turkish law. Thus, requests for the enforcement of foreign joint custody judgments are rejected by Turkish courts for violating public policy. Turkish courts incorrectly consider foreign law, which provides different rules, as grounds for public policy intervention. In this study, it is found that Turkish courts can rule for joint custody by depending on international conventions. Within this framework, it is not possible to reject the enforcement of foreign joint custody judgments by depending on the public policy exception.

The Adoption, Implementation, and Impact of Smoke-Free Policies among Gaelic Athletic Association Clubs in Ireland: A Qualitative Study.

The Gaelic Athletic Association (GAA) is a major stakeholder in promoting smoke-free policies in Ireland. Several GAA clubs have adopted smoke-free policies, and there is a growing interest among other GAA clubs to also become smoke-free. As such, the purpose of this study is to explore the process of how GAA clubs adopt, implement, and enforce smoke-free policies in order to discover best practices that other clubs could replicate. Representatives from 15 smoke-free clubs were interviewed regarding how their club became smoke-free. Interview data were analyzed, in which four major themes emerged: (1) process (planning a smoke-free policy, communicating the policy to the community, providing smoking cessation resources), (2) barriers (opinions and behaviors of club members who smoke, bars connected to club houses, policy exceptions, visitors and umpires who were unaware of the policy), (3) enforcement (community-based style of enforcement, non-confrontational approach, non-enforcement), and (4) impact (observation of policy compliance and decrease in cigarette litter). The study’s findings indicate a general ease of becoming smoke-free with minimal barriers. As such, the GAA should urge each club to become smoke-free and to use the effective methods used by current smoke-free clubs for communicating and enforcing smoke-free policies.

Rice policy in a transitional economy: balancing the social and political objectives

Rice is an important component on the global food security agenda. However, prevailing economic analysis suggests that rice policy globally is often damaging and not economically efficient, rendering food security as a goal highly vulnerable to volatility in the world rice market. This paper explores the case of Vietnam’s rice policy as a key rice exporter, a country that has developed highly distinctive policy settings to manage the inherent tensions between ‘socialist’ policy legacies and ‘market-based’ objectives during an economy-wide liberalisation process. In open economy political terms, our case study facilitates the exploration of two key issues. First, how well the OECD-centric concept of agricultural policy exceptionalism works in a developing country context. Second, how the policy may succeed politically even in the face of what appear to be severe political constraints from external economic pressures. The paper develops a narrative of the political economy of rice policy in Vietnam during the Renovation (Doi Moi) Period from 1986 to the present. We find, first, that the policy trajectory in Vietnam’s rice sector runs counter to recent claims about post-exceptionalism in agriculture; that is, rice policy has resisted pressures to comply fully with market rules despite Vietnam’s accession to the World Trade Organization. Second, the interaction of economic liberalisation processes and the ruling Communist Party’s political survival strategy results in policy settings that fail standards of policy coherence and are often economically inefficient, although the survival strategy itself remains stable and reform-resistant over time.

The Unified Patent Court and the frustrated promise of IP protection: Investors’ claims in (post-)Brexit Britain

Tensions between the EU’s legal order and the international investment law regime are not exclusive to the Brexit era, but they certainly gained momentum in the aftermath of this referendum. By incautiously declaring that the UK will remain a party to the Unified Patent System regardless of Brexit, the British government arguably shaped (il)legitimate expectations on the part of investors who aimed at exploiting their intellectual property rights in the UK while benefitting from the judicial protection of the forthcoming Unified Patent Court as much as of the European institutions (and market) as a whole. Indeed, not only the System itself will undergo a process of major rebalancing after London’s departure from the EU, but more importantly, the UK will most probably be unable to retain its membership in the System after the actual delivery of Brexit. These complications trigger a wide spectrum of fundamental dilemmas investing the definition and scope of concepts such as unilateral declaration, indirect expropriation, reasonable expectation, estoppel, and public policy exception, under both EU law and international investment law. It is therefore essential to explore these intersections as to anticipate possible scenarios in the event of both domestic court and international arbitral claims lodged by patent investors pre- and post-Brexit, having due regard for competition concerns on the side of the EU, yet referring to recent Canadian case law which opened the gate to investor-State claims in the field of intellectual property.

Ethics, intellectual property and commercialization of cultural heritage

The Sámi are an indigenous people residing in Sápmi, a region cutting across northern Scandinavia (Norway, Finland, Sweden) and the Kola Peninsula in Northwest Russia. This article tells the story of a Sámi sun symbol on a seventeen century drum, originally from Swedish Sápmi, that was registered as a trademark by a jewellery company in Norway called “Tana Gull and Sølvsmie AS” in 2009. The mark was invalidated in 2020 because, according to the Norwegian Intellectual Property Office, the registration of a religious symbol was likely to infringe on the rights of the Sámi, whose access to their own cultural and religious symbols should be protected. The basis for the decision was a public policy exception, a provision within trademark law excluding the registration of signs “contrary to morality or public policy”, and allowing the law into account public opinion, public interest and human rights. Analysis of this case is used to shape the debate about the role of intellectual property law in addressing the problem of overcommercialization, for example by preventing cultural misappropriation. The authors suggest that the notion of blasphemy or religious offence through banal commercialization should be more broadly formulated in interpretation of the public policy exception in order to take account of cultural misappropriation. They also argue that protecting the public domain by preventing registration of important cultural and religious symbols is not sufficient to address the problem of cultural misappropriation in a commercial context. Positive protection through trademark registrations is just as important as their defensive protection.

Fall of Last Safeguard in Global Dejudicialization: Protecting Public Interest in Business Disputes

The importance of courts is shrinking. This is largely due to global dejudicialization: the process of outsourcing disputes to private dispute resolution. In the last several decades, along with the triumph of neoliberalism, privatization of the resolution of disputes has become the gospel of modern judiciaries. Courts have been pushed to the tail end of the private adjudication process and are used only as the last resort. The courts’ warm embrace of this structure along with practitioners’ push has led to a staggering expansion of private dispute resolution. The world therefore has witnessed an unprecedented growth of arbitration — the primary mode of private dispute resolution. Despite its importance, judicial review at the tail end of dispute resolution has been understudied. Much of the existing literature focuses on doctrinal definition, normative recommendations, and commentaries about specific high-profile cases. With at least three decades of growing cross-border business disputes, research is needed to form a more holistic view of national courts’ review of arbitration and to provide a path forward in the redesign of the modern global private dispute resolution. This Article achieves that goal by providing an empirical and doctrinal analysis of the public policy exception as a pivotal indicator for judicial reviewability and supervisory function of transnational commercial disputes. The modern private justice system provides an important (if not the only) substantive safeguard to courts. As one of the last remaining safeguards, the public policy doctrine grants discretion to courts to set aside arbitration agreements and awards that harm the public. Owing to the evasive nature of this doctrine, courts and arbitral tribunals alike have grappled with an appropriate way to define and approach this notion. In a comprehensive study, this Article analyzes arbitral tribunals’ and courts’ treatment of public policy claims in commercial disputes over the last three decades using coding and empirical research. The study demonstrates the frequency of public policy claims in courts and arbitral tribunals, issues presented under this rubric, and the success rate of these claims. Results suggest that public policy arguments have increased, while the courts and arbitral tribunals alike have remained passive to these arguments. This Article argues that a triangle of a pro-arbitration policy of courts, the doctrine of international public policy, and the contractual view of arbitration has led to underutilization, ineffectiveness, and the fall of the public policy doctrine as the last safeguard in the dejudicialization of domestic and global business disputes. This Article calls for an overhaul of this structure whereby judicial review is not exclusively available at the end of the private dispute resolution process.

Extended hierarchical key assignment scheme (E-HKAS): how to efficiently enforce explicit policy exceptions in dynamic hierarchies

In this paper, we focus on practically motivated flexibility requirements for the hierarchical access control model, namely transitive exception and anti-symmetric exception. Additionally, we motivate a new flexibility requirement called “class delegation with descendant(s) safety” in a practical application scenario. We propose our extended hierarchical key assignment scheme (E-HKAS) that satisfies all three aforementioned flexibility requirements in a dynamic hierarchy of security classes. To propose a generic E-HKAS, we model the hierarchical access control policy as a collection of access groups. E-HKAS enforces transitive and anti-symmetric exceptions using an efficient group-based encryption scheme. To enforce class delegation with descendant(s) safety, we propose a novel cryptographic primitive called group proxy re-encryption (GPRE) that supports proxy re-encryption between two access groups. We present an IND-CPA-secure construction of our proposed GPRE scheme and formally prove its security. Performance analysis shows that the proposed E-HKAS enforces explicit transitive and anti-symmetric exceptions more efficiently than the existing approaches in the literature. Computation cost for key derivation is constant and does not depend on the depth of the hierarchy. Also, to enforce class delegation with descendant(s) safety, the proposed E-HKAS requires constant number of computational steps to be executed.

Regionalism in the Recognition and Enforcement of Foreign Titles: Implications for Public Policy Scrutiny

This article addresses the problems that public policy continues to pose as a ground for the denial of recognition and enforcement of foreign decisions. After analysing the various attempts (failed and successful) to abolish the public policy exception within the European Union, as well as the dialogue on this matter between the European Court of Human Rights and the Court of Justice of the European Union, the author considers the possibility of overcoming the excessively national notions of public policy to build a regional concept, which might allow avoiding some of the difficulties associated with this notion.

Foreign Act of State

Foreign act of state, the principle that a domestic court will not ‘sit in judgment’ over the acts of foreign countries, is coming under increasing scrutiny, as illustrated by the recent case of Belhaj v Straw (2017). This article traces the emergence of the principle out of traditional rules of private international law that, according to Belhaj, continue to constrain the doctrine. The essay provides a practical guide to the doctrine for use by other judges, who will usually come across act of state in the context of a motion to dismiss or to strike out pleadings. The author reviews five key cases which have considered whether a ‘unifying’ doctrine exists apart from choice of law rules of private international law; whether the principle is one of jurisdiction, non-justiciability, or something different; and the nature of the ‘public policy’ exception. She suggests that the ‘disaggregation’ of act of state into four ‘rules’ posited in Belhaj will remain the organizing framework of the doctrine in the medium term—despite Lord Sumption’s attempts to condense it into one or two rules. She suggests the Supreme Court is departing from the notion of act of state as a broad and inflexible principle of jurisdiction and from the notion that courts should use it in cases where requested by the government to avoid embarrassment to its foreign policy. The author disagrees with the observation, made in Yukos Capital SAR v Rosneft Oil Co (2012), that non-justiciability—the notion that certain issues are inappropriate for domestic courts to adjudicate—has ‘subsumed’ act of state. Rather, it is doubtful that non-justiciability should continue to be regarded as part of the law of act of state. Whether act of state is restricted to acts taking place within the territory of the foreign state, whether it applies to all types of whether it applies to lawful as well as unlawful executive actions, or to judicial acts, still remain uncertain. The greater significance of Belhaj is seen to lie in the Court’s adoption of the public policy exception to act of state in certain circumstances. Five of the seven judges agreed that UK courts should adapt to modern conditions in the form of rules of public policy that are ‘sufficiently fundamental’ to distinguish the conduct in question (in Belhaj, alleged complicity in acts of torture) from other violations of international conventions.

Towards Developmental Integration, Safeguards and Beyond: The Main Features of South Africa’s Preferential Trade Agreements

Abstract In a plethora of new plurilateral treaties, two different economic governance models emerge. One is market driven and aims for closer governmental coordination (the coordination model); the other retains a considerably higher degree of regulatory autonomy (the autonomy model). This article demonstrates that South Africa resorts to both of these models when concluding preferential trade agreements. Most notably, South Africa’s policy focus is shifting to a developmental integration approach that combines market integration with greater emphasis on industrial and infrastructure development and diversification, and associated distributional concerns. This phenomenon becomes most apparent through the inclusion of elements of variable geometry, acknowledging the differences in the level of development among the parties, and closer regulatory cooperation in areas beyond trade and trade facilitation. Additionally, South Africa has included safeguard provisions, public policy exceptions, World Trade Organization (WTO)-plus standards and, in various areas, imported rules developed outside the WTO framework.

Klauzula porządku publicznego a uznawanie zagranicznych orzeczeń, których przedmiotem jest uznanie wyroku lub stwierdzenie jego wykonalności

The paper is devoted to the admissibility of recognition and enforcement of a judgment of a foreign court, the subject matter of which is recognition or declaration of enforcement of a judgment from yet another state (judgment on judgment). The issue is discussed in particular with reference to the public policy exception which constitutes a ground for refusal of recognition or enforcement of foreign judgments, both under Polish domestic law (the Code of civil procedure) and European law (Brussels I bis Regulation). It remains controversial whether the judgments on judgments should be recognized, thus benefiting from the so called “parallel entitlement”. The article takes a comparative approach, examining solutions adopted by various legal systems and analysing arguments for and against recognition of such decisions. The author takes the position that they should not be recognized (and that their enforceability should not be declared) in Poland, both under the Code of civil procedure (as with respect to judgments originating from non-EU states), as well as under EU legislation, in particular Brussels I bis Regulation. It is advocated that the concept of a “parallel entitlement” should be rejected.

Citizenship, integration, and the public policy exception: B and Vomero and K. and H.F.

Citizenship, integration, and the public policy exception: <i>B and Vomero and K. and H.F.</i>

Reducing High-Dose Opioid Prescribing: State-Level Morphine Equivalent Daily Dose Policies, 2007-2017.

To describe current state-level policies in the United States, January 1, 2007-June 1, 2017, limiting high morphine equivalent daily dose (MEDD) prescribing. State-level MEDD threshold policies were reviewed using LexisNexis and Westlaw Next for legislative acts and using Google for nonlegislative state-level policies. The websites of each state's Medicaid agency, health department, prescription drug monitoring program, workers' compensation board, medical board, and pharmacy board were reviewed to identify additional policies. The final policy list was checked against existing policy compilations and academic literature and through contact with state health agency representatives. Policies were independently double-coded on the categories: state, agency/organization, policy type, effective date, threshold level, and policy exceptions. Currently, 22 states have at least one type of MEDD policy, most commonly guidelines (14 states), followed by prior authorizations (four states), rules/regulations (four states), legislative acts (three states), claim denials (two states), and alert systems/automatic patient reports (two states). Thresholds range widely (30-300 mg MEDD), with higher thresholds generally corresponding to more restrictive policies (e.g., claim denial) and lower thresholds corresponding to less restrictive policies (e.g., guidelines). The majority of policies exclude some groups of opioid users, most commonly patients with terminal illnesses or acute pain. MEDD policies have gained popularity in recent years, but considerable variation in threshold levels and policy structure point to a lack of consensus. This work provides a foundation for future evaluation of MEDD policies and may inform states considering adopting such policies.

Conceptualising upcoming Chinese bank insolvency law: Cross‐border issues

AbstractThis paper examines the cross‐border effectiveness of bank resolution measures in the context of current and soon‐to‐be revised Chinese bank insolvency legislation, that is, the Bank Resolution Regulation. The general framework is regulated in the Chinese Enterprise Bankruptcy Law. With regard to the outgoing effects of Chinese bank resolution measures, the ultimate decision is in the hands of China's counterparts. However, it is proposed that the contractual approach could be a solution to enhance legal certainty. On the other hand, the incoming effectiveness of foreign resolution measures has to be firstly recognised in China. Three major tests in terms of recognition and enforcement are international agreement, reciprocity, and public policy exception. These criteria should be interpreted against the background of emerging international regime for bank resolution and latest development in the Chinese legal community.

Understanding public policy limits to the enforceability of forum selection clauses after Douez v Facebook

This article explores the nature of public policy limits to the enforcement of forum selection clauses, recently considered by the Supreme Court of Canada in Douez v Facebook. The public policy factors relied on by the plurality of the Court, inequality of bargaining power and the quasi-constitutional nature of the right at issue, possess neither the doctrinal clarity nor the transnational focus necessary to guide the deployment of public policy in this context. Here, I argue for a public policy exception to the enforcement of forum selection clauses based on the doctrine of mandatory overriding rules. This approach would focus on whether a forum selection clause has the effect of avoiding the application of local norms intended to enjoy mandatory application in the transnational context. This conception of public policy would be a more coherent guide to the exercise of courts’ discretion to enforce forum selection clauses in cases like Douez.

Aligning State Sovereignty with Transnational Public Policy

The rationale for “delocalizing” transnational public policy is not that domestic authorities lack the capacity to delineate the scope of transnational public policy. Rather it is that the public policy that is articulated solely through a domestic judicial lens can be fractionalized as national courts internalize public policy differently to comport with their discrete and sometimes conflicting domestic requirements. This Article uses controversial litigation in the United States and Russia to illustrate the disturbing ripple effect of domestic courts declining to enforce foreign judgments that have annulled arbitration awards. It proposes a way for domestic judges to apply transnational public policy to international commercial transactions, without displacing or circumventing domestic public policy. It applies this analysis to the “public policy exception” by which domestic judges decline to recognize and enforce international arbitration awards under the New York Convention.