The Mitigating Effect of Public Policy in Private International Law - a Comparative Study

Abstract

Depending on the rules of conflict of laws, the legislature has opened the door to the possibility of applying foreign legislation within its territory, particularly when it concerns legal relationships created by individuals themselves. However, a national judge may choose not to apply such legislation if they deem it to be contrary to public policy within their own state. A strict application of the concept of public policy (in this case, public policy in private international law) can paralyze legal relationships established between individuals. This is why French case law, in particular, has developed the concept of the mitigated effect of public policy, which aims to slightly lessen the severity of public policy, just enough to take into account the effects of rights and legal statuses created abroad, rather than within the territory of the national judge's state.