21
Public policy

Sometimes the rules of foreign law which would normally be applied by the English courts are disregarded. The reason for this is that to apply these rules would lead to a result which is contrary to English public policy. Public policy, of course, covers a multitude of sins, but English public policy is of narrower scope than the French doctrine of ordre public.1 One reason for its comparatively rare application is that in relation to such matters as divorce or guardianship and adoption of children, in which the public interest looms large, the English courts apply English law in any case. Moreover, in tort cases the basic choice of law rule is the lex fori, which is English law also. It is mainly in connection with recognition of foreign legal statutes, capacities and incapacities, the law of contract, and questions of title to property that public policy can be at stake.

Moreover, some of the cases, particularly with regard to title to property, appear to be explicable on grounds other than the application of English public policy, which may have a smaller role to play even than it appears to have.

It must be strongly emphasised that it is not normally the foreign law itself which is obnoxious, nor, usually, the recognition of its effects,2 but its enforcement by the English courts.

The discussion can be divided into three parts dealing respectively with (a) penal laws, (b) revenue laws and (c) a possible category of other public laws. Foreign exchange control laws require separate consideration.

____________________
1
There have been some signs in recent years of a perhaps too willing resort to public policy on the part of the courts: see Vervaeke v. Smith[1983] 1 AC 145 (where it seems to have been unnecessary). See also the cases on the former Recognition of Divorces and Legal Separations Act 1971, s. 8(2)(b), p. 329 above, and Gray v. Formosa [1963] P 259 CA where the term used is denial of 'substantial justice'. As to this term see also Adams v. Cape Industries plc[1990] Ch. 433 CA, p. 121 above.
2
See the cases on non-recognition of incapacities or legal disabilities, pp. 362–3 below.

-361-

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Conflict of Laws
Table of contents

Table of contents

  • Title Page *
  • Contents v
  • Preface to the Third Edition vii
  • Table of Statutes viii
  • Table of Cases xxiv
  • Part I - General Principles 1
  • 1 - Introduction 3
  • 2 - Characteristics of the English 8
  • 3 - Choice of Law Rules 11
  • 4 - Proof of Foreign Law 33
  • 5 - Domicile and Residence 37
  • 6 - Substance and Procedure 60
  • Part II - Jurisdiction and Foreign Judgments 69
  • 7 - Jurisdiction of the English Courts 71
  • 8 - Staying of English Actions and Restraint of Foreign Proceedings 84
  • 9 - Foreign Judgments 109
  • 10 - Jurisdiction and Judgments in the European Union and Efta 131
  • 11 - Arbitration 179
  • Part III - Law of Obligations 187
  • 12 - Contract 189
  • 13 - Tort 220
  • Part IV - Property and Succession 241
  • 14 - Property Inter Vivos 243
  • 15 - Succession 268
  • 16 - Matrimonial Property Relations 277
  • 17 - Trusts 286
  • Part V - Family Law 293
  • 18 - Marriage 295
  • 19 - Matrimonial Causes 319
  • 20 - Children 334
  • Part VI - Exclusion of Foreign Laws 359
  • 21 - Public Policy 361
  • Part VII - Theoretical Considerations 375
  • 22 - Reasons for and Basis of the Conflict of Laws 377
  • 23 - Public International Law and the Conflict of Laws 386
  • Index 395
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