What role does and should public policy play in the conflict of laws?

In considering the role of public policy one must look in the backdrop of what is meant by the branch of
law of conflict of laws and what the conflict of law rules are, in order to provide an in-depth analysis of
what role public policy plays in the conflicts of laws, its purpose and its extension of application and also
its limitations.

Conflicts of laws are a part of English law that comes in play whenever one is confronted by a legal
problem consisting of a foreign element. Such as when a French woman goes through marriage
proceedings in Pakistan and discovers that the marriage is a polygamous one and wishes to know her
status in such a situation whether she is in fact married and whether her marriage is polygamous or
monogamous. There could be so many variations of this nature such as the involvement of foreign
elements in laws such as contract tort and so on. In such a situation it is evident that the dispute has
taken place between 2 or more jurisdictions. Therefore treating such a dispute as a domestic one would
lead to several controversies. One may ask of what nature. The issue when dealing with a dispute
heralding between two jurisdictions, and proceeding to treat it as a domestic one will lead to unfairness
for the parties involved as they may be bound by a law that they were not familiar or aware of during
the dispute. Also it is unfair to judge one party with a law they are familiar with when the other party is
not. Therefore in all fairness one law must be selected as a basis to judge the dispute on.

Therefore by a using systematic unbiased methodology the most appropriate law for the conflict must
be chosen, this is the basic purpose of the conflict of law rules. In an attempt to thus select the most
appropriate law with regard to the dispute certain factors are taken into consideration such as the most
competent court to hear the matter also called jurisdiction, the most appropriate law applicable to the
dispute which is the choice of law determined by various connecting factors and the final factor being
the recognition and enforcement of foreign judgments.

Therefore in deciding the most appropriate choice of law international comity has agreed upon a set of
rules to govern different disputes such as the connecting factor lex contractus will apply to disputes of
contracts, lex loci celebrationis for resolving disputes arising from marriage and lex loci delictus with
regard to issues of delict. The idea behind this methodology is that the judge has no discretion in
deciding the law thereby applicable to the dispute.

This takes us to our first question on what public policy is and where it stands in this set up of conflicts
of laws. Public policy to be exact would fall into the third factor taken into consideration in deciding the
applicable law, so what exactly then is public policy. Public policy is that what comes into play when
having applied the above methodology and having decided which law is to be used in the above
situation. That the forum may exclude foreign law designated by its own choice of law rules, or refuse to
enforce a foreign judgment if the foreign judgment is contrary to the forum’s public policy. This was
compared by Savigny to a situation where in the England remained divided from the rest of the world as
if by a Chinese wall. And the reason a judge rejects the application of foreign law on public policy
grounds would ideally be in a situation where it violates some principles of justice, some prevalent
conception of good morals or some deep rooted tradition of the common weal according to Justice
Cardozo.

Therefore the writer continues to analyze in more depth why public policy is actually necessary in the
cases such as above. The reason why the English courts invoke public policy as an exception mainly is
because to recognize the foreign law in such a circumstance would offend the fundamental ideas of
morality, decency, human liberty or justice or another situation public policy is resorted to is when the
dispute in question falls within an English Law designed to protect the public policy which is evident
through case law such as Oppenheimer v Cattermole where the English court refused to apply the Nazi
law in depriving German Jews their nationality of their property this was an instance where it offended
the fundamental idea of human liberty and human rights in England. An another example of the latter
situation is where a party from a country requires the enforcement of judgment allowing him to have in
his possession marijuana as it is allowed in the country he is from, however laws prohibit the use of
marijuana have been placed since 1971 in order to protect the public interest of the UK citizens
therefore this situation falls within the scope of the English Law designed to protect the public policy
therefore enforcing a judgment in his favor would be contrary to the public policy. This falls within the
second described category. Also other situations where the English courts will resort to public policy is in
the case of Champertous contracts, which is a situation of sharing in proceeds of litigation by one who
agrees with the plaintiff or defendant to promote litigation, Trading with the enemy was also another
instance of contract which was not allowed to proceed as it was contrary to the public policy as held in
Dynamite AG V Rio Tinto. Other contracts which are not in line with the public policy of English Law are
the suing of a dead person, also a dead person cannot sue another in litigation.

Also sensitive matters concerning human rights are too considered to be contrary to the public policy
such as granting a decree in disputes concerning slavery; Somersett’s case. Another instance would be
refusing to enforce rules prohibiting marriages of people from two different races, Also the refusal to
enforce the marriage of a minor as was held in Cheni v Cheni are stellar examples of how English Courts
by the means of public policy have stepped in to bring about justice in terms of morality, decency,
human liberty or justice. And when all routes points to a certain law Public Policy would be the least
defense of the forum to step in and preserve the above values. Also it ensures that the sovereignty of
the state is not sacrificed especially in the situation controls or laws have been placed to prevent certain
activities in the interest of the public