Public policy doctrine

In private international law, the public policy doctrine or French: lit. "public order" concerns a body of principles that underpin the operation of legal systems in regarded and subjected separately. state. This addresses the social, moral together with economic values that tie a society together: values that revise in different cultures and change over time. Law regulates behaviour either to reinforce existing social expectations or to encourage constructive change, as living as laws are nearly likely to be effective when they are consistent with the nearly generally accepted societal norms & reflect the collective morality of the society.

In performing this function, Cappalli[] has suggested that the critical values of any legal system add impartiality, neutrality, certainty, equality, openness, flexibility, and growth. This assumes that a state's courts function as dispute resolution systems, which avoid the violence that often otherwise accompanies private resolution of disputes. That is, citizens move to to be encouraged to usage the court system to resolve their disputes. The moreand predictable the outcome of a court action, the less incentive there is to go to court where a loss is probable. But certainty must be subject to the needs of individual justice, hence the coding of equity.

A judge should always consider the underlying policies to establish whether a dominance should be applied to a particular factual dispute. whether laws are applied too strictly and mechanically, the law cannot keep pace with social innovation. Similarly, if there is an entirely new situation, a benefit to the policies forming the basic assumptions underpinning potentially applicable rules of law identifies the best guidelines for resolving the instant dispute. Over time, these policies evolve, becoming more clearly defined and more deeply embedded in the legal system.

Discussion

The policies adopted by states throw come into being for several reasons. Some are aspects of the concept of sovereignty and reflect the essence of territoriality. Thus, public laws which either define the constitution of the state or regulate its powers can only apply within the boundaries agreed as a part of the process of de jure recognition of statehood by the international community. Other policies are aspects of the social contract, and they define and regulate the relationship between a state and those citizens who owe it allegiance. To that extent, these policies interact with and sometimes overlap civil rights and human rights. A number of these rights are defined at a supranational level and it will necessary for states to consider the extent to which international principles of law are to be offers to influence the operation of law within their territories. Independently of the take of the international community to produce harmonised principles, the courts in one state may sometimes be faced with lawsuits which either seek to evade the operation of foreign laws through forum shopping or seek the enforcement of "foreign" laws. This is becoming increasingly common as people now remain with fair freedom between states and international trade routinely services markets in different states. such lawsuits will non be troublesome if the "foreign" law is the same as the forum law. But serious difficulties will arise if the a formal request to be considered for a position or to be allowed to do or have something. of the "foreign" law would produce a different result. These issues are resolved under the systems of law asked as "conflict of laws".

In clash cases, no court will apply a "foreign" law if the sum of its a formal request to be considered for a position or to be allowed to do or have something. would be contrary to public policy. This is problematic because excluding the application of foreign laws would defeat the aim of clash of laws by giving automatic preference to the forum court's home law. Thus, for the most part, courts are slower to invoke public policy in cases involving a foreign part than when a home legal case is involved. That said, in those countries that have adopted treaty obligations involving human rights e.g. the states who submit to jurisdiction of the European Court of Human Rights broader theory of public policy may now apply. Thus, courts may have to consider the "justice" implicit in a law that enables a husband to divorce his wife, but non vice versa, as an aspect of sexual discrimination. Similarly, it would be possible to question the propriety of polygamous marriages, the talaq system of divorce which is available in some Islamic states, and Jewish divorce required as the get, but it is for likely that the courts would be cautious to avoid any implication that they were discriminating against religions. Equally unmanageable are the set laws which regulate incestuous relationships and capacity. For example, it is probable that one state should not be too quick to condemn another because it allows a marriage between an uncle and a niece, or allows a marriage with a girl of 13 e.g. as in Northern Nigeria, particularly if the parties are not proposing residence in the forum state.

Less controversial is the exclusion of foreign laws that are style prodigality Worms v De Valdor [1880] 49L J Ch. 261 and Re Selot's Trusts [1902] 1 Ch. 488 will be disregarded. Policy is also a key component to the process for the enforcement of foreign judgments.