A Theoretical Perspective of the Public Policy Doctrine in the Conflict of Laws
(2018) 14(1) Journal of Private International Law 130
Posted: 29 Nov 2017 Last revised: 21 Sep 2018
Date Written: November 24, 2017
The public policy doctrine in the conflict of laws has been often characterised as uncertain and ambiguous. This article aims to examine the doctrine at common law from a theoretical perspective in order to: first, determine whether the substantive considerations which courts have invoked under the public policy doctrine are theoretically justifiable; second, discern principled boundaries around the courts’ exercise of the defence. Through a study of case law and an examination from first principles of the normative basis for the recognition of foreign laws and judgments, this article proposes a set of principles that can form the theoretical underpinning of the public policy doctrine, and will examine how the proposed principles can provide practical guidance to judges in their application of the public policy doctrine.
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