The Role of the Public Order Clause in Modern Cases Concerning Children: The Polish Example
International Journal of the Jurisprudence of the Family, Vol. 9, Forthcoming
25 Pages Posted: 28 Mar 2019 Last revised: 19 May 2019
Date Written: March 27, 2019
The contemporary internationalization of family matters often leads to the necessity of using the rules of private international law. The first, concerning its application in civil law countries, is the rule according to which the trial court ex officio applies its own conflict rules and norms that the law indicates as proper. If the conflicts laws so direct, the trial court then has the obligation to apply foreign law, no matter how much it may differ from its own. It is difficult to predict if and when situations in which the application of foreign law would mean the application of solutions unacceptable to the forum’s legal system. The public order clause protects against this. It is a form of protection provided by the forum’s legal system against consequences arising from the application of foreign laws that are difficult to accept.
In this Article the term “public order clause” refers to the statutory provision dealing with that subject in Polish law and to similar clauses in the codes of many other countries. Much of the analysis in this Article applies also to the common law doctrine excluding foreign law from applicability when it violates the public policy of the forum. Sometimes hereinafter this extension is made explicit.
Suggested Citation: Suggested Citation