Balancing foreign judgments against domestic policies

A legal scholar at the Singapore Management University (SMU) has outlined a set of guiding principles to help judges to decide what to do if a foreign judgement comes into conflict with domestic public policy. These findings have been recently published in the Journal of Private International Law.

For most legal cases, a judgment passed by a foreign court will be recognised by other common law countries if important conditions are met, such as if the judgment is final, and if the foreign court has international jurisdiction over the parties involved.

Yet, in a small number of cases, a foreign judgment may be refused recognition when found to be contrary to a country's public policy. Here, the public policy doctrine serves as a defence to foreign judgements, and can play a crucial role in protecting a community's interests.

Not everyone, however, is a fan of the public policy doctrine. Critics have said that it entangles 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 study author Mr. Kenny Chng Wei Yao, a lecturer of law at the SMU School of Law.

Mr. Chng examined cases across major common law jurisdictions in which the public policy doctrine had been invoked, successfully or otherwise. He then discussed whether the cases where the public policy doctrine have been invoked are theoretically justifiable.

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

"I argue that there are two main principles that should ground the public policy doctrine. In the first principle, the courts are in fact thinking about universal norms of justice that are not specific to any community," Mr. Chng explained.

"The second principle acknowledges the sovereignty of individual nations, balancing out the first principle. Here, the public policy doctrine should be invoked to refuse recognition of a foreign judgment or law if it poses some kind of danger to community interests."

According to Mr. Chng, the relationship between the two principles can be governed by the concept of subsidiarity, an organising principle that has its roots in Catholic social thought and which also serves as a theoretical foundation for European Union law.

More information:
Kenny Chng, A theoretical perspective of the public policy doctrine in the conflict of laws, Journal of Private International Law (2018). DOI: 10.1080/17441048.2018.1437328

Provided by Singapore Managment University