Clone of Faculty Research Series - A Theoretical Perspective of the Public Policy Exception in the Conflict of Laws

Faculty Research Series 

"A Theoretical Perspective of the Public Policy Exception in the Conflict of Laws"  

Synopsis

Public policy functions as a defence to the well-established rule of the common law that the forum will recognise the judgment of a foreign court if certain conditions are met. If recognition of the judgment is deemed to be contrary to the public policy of the forum, the foreign judgment may be refused recognition in the forum, even if the conditions for recognition are fulfilled. The public policy defence is also relevant in the context of choice of law. Even if the relevant choice of law rule of the forum points towards the applicability of a foreign law to govern a particular issue, the forum may refuse to apply the foreign law if the law itself, or the results of its application, are contrary to the public policy of the forum.

Judges and commentators alike have criticised the public policy defence as uncertain and ambiguous, and have characterised it as a tool of last resort when all other legal options are exhausted. Indeed, a survey of case law reveals that judges have invoked many different types of considerations and norms as part of the public policy defence, without paying sufficient attention to whether the invocation of such norms is justifiable in the first place.

This article aims to examine the public policy exception at common law from a theoretical perspective. This analysis is targeted at two main objectives: first, to determine whether the substantive considerations which courts have invoked under the public policy defence are theoretically justifiable; and second, to discern principled boundaries around the courts’ exercise of the defence. To that end, this article will first conduct a survey of case law to examine the types of considerations that judges have invoked in their application of the public policy defence. Next, the theoretical framework underlying and justifying the courts’ practice of recognising foreign judgments and foreign laws will be studied. With an understanding of the theoretical foundations of the recognition of foreign judgments and foreign laws, we will be in a better place to analyse how the public policy defence fits within this bedrock of principle, and what justifications can be proffered for the public policy defence within this framework. This article will then propose a set of principles that can form the theoretical underpinning of the public policy defence, and consider whether the courts’ invocation of the various types of norms under the public policy defence is normatively justifiable. The final section of this article will examine how the proposed principles can provide practical guidance to judges in their application of the public policy defence.

Speaker

Kenny Chng
Lecturer of Law
Singapore Management University

Event Details

Registration

This is an invitation-only event.  Admission is free and by registration only. Please register by Monday, 27 March 2017.    
 

We look forward to seeing you at the event.

With warm wishes

School of Law
Singapore Management University