Balancing foreign judgments against national policies

A jurist from Singapore Management University (SMU) has set out a set of guiding principles to help judges decide what to do if a foreign judgment conflicts with a national public policy. These results were recently published in the Journal of Private International Law .

For most legal cases, a judgment rendered by a foreign court will be recognized by other common law countries if important conditions are met, for example if the judgment is final and the foreign court has jurisdiction on the parties involved.

Yet, in a small number of cases, a foreign judgment may be denied recognition if it is found contrary to the public policy of a country. Here, the doctrine of public policy serves as a defense to foreign judgments and can play a crucial role in protecting the interests of a community.

However, not everyone is a fan of the public policy doctrine. Critics have said that it embarrasses judges with controversial moral and political issues, while its uncertain and ambiguous nature makes it a tool of last resort only when all other legal options are exhausted.

"The public policy doctrine in private international law has not really been the subject of much academic commentary, contributing to its relatively amorphous nature," said the author of the report. study, Mr. Kenny Chng Wei Yao, Professor of Law at the SMU School of Law.

million. Chng examined cases in the major common law jurisdictions in which public policy doctrine had been invoked successfully or otherwise. He then examined whether the cases in which the public policy doctrine has been invoked are theoretically justifiable.

To provide practical advice to judges, Mr. Chng proposed a set of two principles that courts should consider in their application of the doctrine of public policy: first, to maintain a universal standard of justice and second to protect Community interests.

"I contend that the doctrine of public policy is based on two main principles: according to the first principle, the courts are in fact considering universal norms of justice that are not specific to any community," Chng said.

"The second principle recognizes the sovereignty of individual nations, balancing the first principle: here, the doctrine of public policy should be invoked to deny the recognition of a foreign judgment or law if it presents a danger to the Community interests. "

According to Mr. Chng, the relationship between the two principles can be governed by the concept of subsidiarity, an organizing principle rooted in Catholic social thought and which also serves as a theoretical basis for European Union law. . [19659002] More information:
Kenny Chng, A theoretical perspective of the doctrine of public policy in the conflict of laws, Journal of Private International Law (2018). DOI: 10.1080 / 17441048.2018.1437328

Supplied by Singapore Managment University

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