Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter P.17: Public policy (ordre public)1

Ioanna Thoma

I. Ordre public: an exception clause

The participation of states in the community of nations is coupled with the prerequisite of acknowledging that cases involving foreign elements may have consequences in more than one jurisdiction. This is why nations developed the rules of private international law/conflict of laws – in order to determine the applicable law in cross-border legal relationships and facilitate the pursuit of such relationships. Private international law is premised on international →comity. International comity is demonstrated in the principle that foreign law should be given fair and just consideration and that rights acquired in foreign jurisdictions should be acknowledged by a forum to the greatest extent possible. However, the commitment in any given forum to apply the law of another jurisdiction or to recognize and enforce a foreign judgment or arbitral award has its limits. These limits are in broad terms local morality and social order. A foreign rule, a judgment or a decree have no effect in the domestic legal system if they are deemed contrary to that system’s public policy or ordre public (both terms will be used here interchangeably). Ordre public can thus operate both as a sword and as a shield (see section IV. below the distinction between positive and negative ordre public). In activating its ordre public, the forum does not reject the content of foreign law as such, but merely denies the consequences flowing from the application of foreign law or the recognition and enforcement of a foreign judgment or arbitral award in the forum. The rationale is simple: in the particular case foreign law, judgments or arbitral awards are regarded as harmful or offensive for the forum while at the same time the values and principles enshrined in the lex fori are too fundamental to be ousted. Ordre public is a general and abstract notion that is specified by the judge.

II. Ordre public in the two main legal traditions: common law and continental law

In the common law legal systems, ordre public is termed public policy and its ambit, extent and manner of application is defined through the evolution of case-law. In English law, the first seeds of the concept of public policy appeared in the 15th century and by the 18th century it had developed into the notion we know today. There is evidence that by the early 20th century, public policy was applied in an expansive manner. Since then, there has been a shift in the development of the concept towards a clearer distinction between domestic public policy and international public policy. The latter is relevant for cross-border legal relationships and applies only in extremely rare instances.

Under American law, public policy is invoked in intra-state, interstate and international legal relationships. Intra-state public policy corresponds to the English domestic public policy and ensures that the laws of any given state are applied in a uniform way. Interstate and international public policy become relevant where conflicts of norms either from different US states or from other countries occur. According to the US Supreme Court, the full faith and credit clause requires states within the US to distinguish the way they treat conflicts of applicable laws among the various sister states from the recognition of judgments rendered by courts in other US states. Considerations of public policy in one US state may override the policies underlying the application of another state’s law. However, no public policy exception can be invoked by a court of a US state vis-à-vis the recognition and enforcement of judgments originating from other US states (Franchise Tax Board v Hyatt 538 U.S. 488, 494 (2003)). International public policy is applied by American courts in a restricted manner, and is underpinned by the consideration that the consequences derived from its p. 1454application should be just and predictable for those involved in interjurisdictional relationships. As a result, the international public policy prevailing in international transactions is narrower in scope than that in intra-state and interstate transactions (→Interregional/Interstate law).

In most continental legal systems, one finds statutory provisions in national codified legislations that define the conditions for the application of ordre public. For example, the present wording of the provision addressing ordre public in German private international law (art 6 Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche of 21 September 1994, BGBl. I 2494)) requires that the concrete application of a foreign law should lead to ‘a result manifestly (offensichtlich) incompatible with the fundamental principles of the German legal order’, for it to be ousted. In the second sentence of the same article, it is expressis verbis stated that the same rule applies when the said application would constitute a violation against ‘Grundrechte’, ie fundamental rights or human rights. A requirement for the operation of ordre public is the ‘Inlandsbeziehung’, ie proximity (spatial, personal or temporal) to the forum.

Most codifications make general reference to ordre public: see art 16 Italian Private International Law Act (Riforma del Sistema italiano di diritto internazionale private, Act No 218 of 31 May 1995 in Gazz.Uff, Supplemento Ordinario No 128 of 3 June l995, as amended); art 17 Swiss Private International Law Act (Bundesgesetz über das Internationale Privatrecht of 18 December 1987, 1988 BBl I 5, as amended); art 3081 of the Code civil of Quebec (L.Q. 1991, ch 64); art 5 Turkish Private International Law Code (Code on Private International and International Civil Procedure Law of 27 November 2007 (Act No 5718) (Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun), Resmî Gazete No 26728 of 12 December 2007). In other legislative codifications, ordre public is combined with good morals, as in art 28 of the Egyptian Civil Code (Law No 131/1948 of 16 July 1948, al qānūn al madanī); art 30 of the Japanese Act on General Rules for Application of Laws (Hōno Tekiyō ni Kansuru Tsūsokuhō, Law No 10 of 1898, as newly titled and amended by Act No 78 of 21 June 2006); art 33 of the Greek Civil Code (Astikos Kodikas of 23 February 1946, A.N. 2250/1040; FEK A 91/1940, 597). Furthermore, codifications may also include references to the public law of the forum (art 14 of the Argentine Civil Code (Código Civil de la República Argentina of 25 September 1869, by the passage of Law 340, entry into force 1 January 1871) or the basic tenets and values of the legal order of the state concerned (art 6 of the Austrian Federal Code on Private International Law (Bundesgesetz über das internationale Privatrecht of 15 June 1978, BGBl. No 304/1978, as amended)). Finally, explicit reference to the ‘international ordre public’ is also found (art 22 of the Portuguese Civil Code 1966 (Código Civil approved by Decreto-Lei No 47.344, of 25 November 1966, [1966] DG I série 274/1883, with subsequent amendments; consolidated version available at (<www.pgdlisboa.pt>)).

Turning to French law, art 6 of the French Civil Code (Code Civil of 21 March 1804; henceforth French CC) provides that statutes relating to public policy and morals may not be derogated from by private agreement. This provision concerns French internal public policy and not the mechanism intended to oust the application of foreign law. On the other hand, the concept of public policy in private international law is developed by case-law and legal doctrine. It connotes the principles of universal justice considered by public opinion as having absolute value, the fundamental principles of the French legal system, as well as provisions relating to the political, social and economic structure of the country. Certain core elements mentioned above of the public policy and morals, as stipulated in art 6 French CC, thus form an integral part of the French ordre public international. French law clearly distinguishes ordre public from the ‘lois d’application immédiate’ which are directly applicable – regardless of the conflict of laws provisions – and which must be observed for the protection of the country’s political, social or economic order.

One observation relating to the development and role of the exception clause in the common and continental legal systems concerns the terminology of the words ‘policy’ and ‘ordre’. The two terms are by no means equivalent. ‘Policy’ suggests that the principles concerned are enshrined in wider societal and political ideas, whereas ‘ordre’ is closer p. 1455to the English term ‘law and order’ and has fewer political connotations compared to policy.

III. Ordre public in international and European legal instruments

References to the exception clause of ordre public are found in a number of international codifications of private international law as well as in the legal instruments of the EU. The list set out below is by no means exhaustive, but is indicative of the widespread recognition of the role and importance attributed by states to this mechanism.

1. European Union legal instruments

The European instruments implementing uniform rules of private international and international procedural law within the EU frequently include ordre public as an exception clause to the otherwise applicable law or as a ground for refusing recognition and enforcement of a judgment issued by the courts of another Member State. These clauses share an emphasis of the fact that the contrariness to the ‘ordre public’ of the forum – also understood as the place where recognition of a judgment is sought – should be manifest. In addition, there are two examples where the exception clause is further qualified as demonstrated below:

  • art 21 Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I Regulation (contractual obligations));

  • art 26 →Rome II Regulation (non-contractual obligations) (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40);

  • art 12 →Rome III Regulation (divorce) (Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L 343/10);

  • art 35 Succession Regulation (Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, [2012] OJ L 201/107; →Rome IV Regulation (succession));

  • art 34(1) Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12/1) and art 45(1)(a) Brussels I Regulation (recast) (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1) (→Brussels I (Convention and Regulation)): in the Brussels I Regulation (recast), ordre public remains in place as a ground for refusal of recognition and enforcement of judgments issued within the EU, but it is noted that, on the occasion of revision of the text by the European Commission, deletion of the clause had been proposed.

  • art 23(a) →Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2003] OJ L 338/1), where the court of the forum must have regard to the best interests of the child when considering activation of the mechanism of ordre public. This means that in specifying the content of the forum’s ordre public, the court must gauge the effects that the legal conclusion will have on the child’s best interests. The analysis may thus lead to application of a law other than the otherwise applicable law or law of the forum;

  • art 26(6) Insolvency Regulation (Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, [2000] OJ L 160/1), where the content of ordre public encompasses in particular the fundamental principles of the forum or the constitutional rights and liberties of the individual.

On the other hand, the exception of ordre public does not appear in: European Enforcement Order Regulation (Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, [2004] OJ L 143/15); European Payment Order Regulation (Regulation (EC) p. 1456No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure, [2006] OJ L 399/1); and European Small Claims Procedure Regulation (Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure, [2007] OJ L 199/1).

2. International codifications

A number of conventions, model laws and sets of uniform rules developed within the framework of the Hague Conference on Private International Law, →UNIDROIT and →UNCITRAL provide for a reservation of the ordre public. For example:

  • art 6 Hague Sales Convention (Hague Convention of 15 June 1955 on the law applicable to international sales of goods, 510 UNTS 147);

  • art 4 Hague Child Maintenance Convention 1956 (Hague Convention of 24 October 1956 on the law applicable to maintenance obligations towards children, 510 UNTS 161);

  • art 2(5) Hague Child Maintenance Convention 1958 (Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children, 539 UNTS 27);

  • art 16 Hague Infant Protection Convention (Hague Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants, 658 UNTS 143);

  • art 7 Hague Testamentary Dispositions Convention (Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, 510 UNTS 175);

  • art 10 Hague Divorce and Separation Convention (Hague Convention of 1 June 1970 on the recognition of divorces and legal separations, 978 UNTS 399);

  • art 5(1) of the Hague Maintenance Recognition and Enforcement Convention 1973 (Hague Convention of 2 October 1973 on the recognition and enforcement of decisions relating to maintenance obligations, 1021 UNTS 209);

  • art 11 Hague Maintenance Applicable Law Convention 1973 (Hague Convention of 2 October 1973 on the law applicable to maintenance obligations, 1056 UNTS 204);

  • art 24 Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and cooperation in respect of inter-country adoption, 1870 UNTS 167; 32 ILM 1134);

  • art 23(2)(d) Hague Child Protection Convention (Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, 35 ILM 1391);

  • art 13 Hague Maintenance Protocol 2007 (Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations, [2009] OJ L 331/19);

  • § 30B of UNIDROIT Principles of Transnational Civil Procedure (ALI/UNIDROIT Rules of Transnational Civil Procedure (text of the Principles and the accompanying commentary were adopted by the American Law Institute (ALI) in May 2004 and by the International Institute for the Unification of Private Law (UNIDROIT) in April 2004, (2004) 4 Unif.L.Rev. 758));

  • art V (2)(b) 1958 New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3);

  • art 34(2)(b)(ii) 1985 UNCITRAL Arbitration Model Law (United Nations Commission on International Trade Law, UNICITRAL Model Law on International Commercial Arbitration as adopted on 21 June 1985, and as amended on 7 July 2006, UN doc A/40/17 and A/61/17; →Arbitration, (UNCITRAL) Model Law);

  • art 23 UNCITRAL Assignment of Receivables Convention (United Nations Convention on the Assignment of Receivables in International Trade, concluded 12 December 2001, adopted by resolution A/RES/56/8) (which makes reference both to ordre public and mandatory rules);

  • art 6 UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment, 1997 (UNCITRAL (ed), Model Law on Cross-Border Insolvency with Guide to Enactment (1997): Model Law on Cross-Border Insolvency of the United Commission on International Trade Law, Resolution 52/158 adopted by the General Assembly, 30 January 1998, No E.99.V.3, General Assembly Resolution 52/158 of 15 December 1997).

IV. Sub-divisions of the concept of ordre public

The concept of ordre public has been significantly fragmented and sub-divided into various categories in the legal doctrine. A first division is p. 1457made between negative and positive ordre public. The negative function consists in denying the effects resulting from the application of foreign law or from the recognition and enforcement of a foreign judgment/arbitral award. Family, →succession, personal as well as contract law are the main fields where the mechanism of negative ordre public is usually activated. On the other hand, concerning the matter of ordre public positif, a long debate has been conducted in legal scholarship. Various terms have been used to signify its function: lois d’application immédiate, Eingriffsnormen, internationally mandatory rules or specially mandatory rules. Distinctions among these various terms have been argued by private international law scholars. In general, rules of positive ordre public relate to the functioning of the state and the economy. For the purpose of this encyclopedic entry, the positive function of ordre public will mean the mechanism by which certain substantive rules – generally but not necessarily of the lex fori – apply directly under certain conditions and thus interfere with the operation of the conflict of laws rules.

Ordre public is also divided into domestic and international as was mentioned in the section dealing with the historical evolution of the concept (see section II. above). The domestic version of ordre public concerns all those peremptory rules from which legal persons cannot deviate by way of agreement. On the other hand, the international – otherwise known as ‘transnational’ or ‘truly international’ – ordre public operates in a transnational context with a view to preserving the principal values of the forum vis-à-vis insulting and intolerable interferences resulting from the application of a foreign law or the enforcement of a foreign judgment/arbitral award. Not all rules of domestic ordre public amount to rules of international ordre public. On the contrary, only a small number of mandatory domestic provisions are deemed to implement moral, societal, political or economic principles as well as values which are so fundamental as to justify the ousting of otherwise applicable foreign norms. The international ordre public has a far more limited content and a narrower scope of application than the domestic ordre public.

A further sub-categorization of the concept is substantive (ordre public matériel) versus procedural ordre public. This classification focuses on the source, content and type of the rules concerned. The former encompasses all rules setting out the rights and obligations deriving from a legal relationship, while the latter concerns the procedural rules established for the enforcement of such rights and obligations before courts and arbitral tribunals. Further, when ordre public operates as a barrier to the application of foreign law, the court of the forum always applies the lex fori for the procedural matters, so that ordre public addresses only substantive law issues. Conversely, when ordre public operates as a barrier to the recognition and enforcement of foreign judgments and arbitral awards, it includes both substantive and procedural considerations.

A norm classified as forming part of the ordre public can at any time fall under one or more of the categories mentioned in this section; for example it can be international, negative and substantive at the one and same time.

V. Relativity of ordre public

Ordre public is a relative notion. It changes through time and place. Its content is subject to constant evolution and reflects the current state of values and morality in a given society. The relative character of ordre public is further demonstrated by the fact that the court has to take into account all the specific circumstances of the case before dismissing a foreign law on the grounds of ordre public. The logic behind the relative operation of ordre public can be summarized as follows: while in abstract terms a foreign law provision may run counter to the principles reflected in the lex fori, its application in the light of the specific circumstances of the case may nevertheless be compatible with it. Conversely, the abstract rule of a foreign legal system may be fully aligned with the fundamental values of the forum while under specific circumstances the result of its application may lead to constitute a flagrant violation of the forums ordre public.

In Germany, this feature of ordre public is called ‘Inlandsbeziehung’ (literally meaning connection with the country’) and in France it is known as effet atténué. While the two notions are not identical in meaning, the logic underpinning them is premised on the same idea: it signifies the proximity, spatial and temporal, p. 1458that the facts of the legal relationship in question have with the forum.

Inlandsbeziehung is not an additional →connecting factor of the private international law rule; it rather sheds more light on the degree of violation of the ordre public of the forum. When the violation deriving from the application of a foreign law is particularly flagrant and intense, a minor Inlandsbeziehung of the set of facts to the forum suffices and vice versa. Domicile, residence (→Domicile, habitual residence and establishment) and nationality are recurring factors of proximity for Inlandsbeziehung. If the violation of the ordre public consists in the disregard of the essence of fundamental principles for the protection of human rights (→Human rights and private international law), it does not seem pertinent to adapt the effect of the mechanism in accordance with the Inlandsbeziehung, and in particular nationality. However, this statement has to be qualified. For example, in Europe it is considered that polygamous marriages (one man married to several women) violate gender equality and lead to discrimination on the grounds of gender. Accordingly, the celebration of such marriages in Europe is considered contrary to ordre public. Conversely, European courts tend to recognize the validity of such marriages when celebrated outside Europe. However, recognition of the legal effects deriving from such marriages between spouses living in the territory of a European state (such as for maintenance claims, residence permit) gives rise to more complicated considerations. In those instances, the courts around Europe have taken differing positions and various opinions are debated in legal scholarship as to how to tackle this issue. The diversity in the approaches adopted by the various national European courts provides a clear evidence of the relativity of the notion of ordre public.

In a similar vein and with regard to the recognition and enforcement of decisions, the attenuated effect of ordre public makes a distinction between, on the one hand the reaction of ordre public in the case of acquisition of a right in the forum and, on the other hand giving effect in the forum to a right acquired abroad without fraud according to a law which is applicable based on the French rules of private international law. Ordre public reacts more strongly for rights acquired domestically compared to rights legitimately acquired abroad. The proximity to the forum here is of a temporal character in that the ordre public mechanism is activated in a different way depending on whether the rights are acquired for the first time when the forum is seized of the case or whether they have already been acquired and the forum is called upon to assess and give effect to the consequences deriving from their acquisition. The main idea behind the attenuated effect relates to the justified expectations of the parties. A judicial pronouncement, produced at a given time and in a certain place, develops legal repercussions before the stage of its recognition and enforcement by a foreign court. Legal certainty and respect for public international law principles of comity and sovereignty impose a lenient, as well as narrow control of the foreign decision.

VI. Legal consequences and effects

Once the application of the foreign law is rejected, the need emerges to identify an applicable law in order to govern the legal relationship. Most private international law statutes do not provide for the subsidiarily applicable law and leave the task of identifying it to the judge. Others explicitly provide the →substitution by the lex fori. In some jurisdictions, a middle path is adopted, according to which the lex fori is applicable to the extent necessary.

When the lex fori substitutes foreign law it does so to a limited extent; only a highly specific provision of the lex fori replaces the provision of the foreign lex causae which is rejected by the ordre public. However, there may be instances where it is possible to apply other more appropriate rules of the applicable foreign legislation. In such instances, substitution of the applicable foreign legislation by the lex fori may not be the most appropriate step.

When the ordre public is applied in the context of recognition and enforcement of a foreign judgment or arbitral award, it results in the rejection of absorption in the forum of the legal effects deriving from such judgment or arbitral award. There is no further impact than this.

VII. Europeanization of ordre public

In the European legal order, several types of ordre public coexist. First, ordre public/public policy is one of the permissible limitations – the other two being public morality and public p. 1459security – to the fundamental economic freedoms enjoyed within the EU market. In this context the clause is of national origin and restricts the exercise of rights having an economic content. EU law does not provide a definition for these clauses. In ECJ case-law it has been recognized, for example, that the various EU Member States can have different standards and thresholds when it comes to fundamental values and rights, including human dignity (Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609). The content and operation of this type of public policy is not relevant for private international law.

Furthermore, there are the rules for the protection of fundamental rights guaranteed under the ECHR (European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221). The system of the Convention aspires to transcend the legal boundaries of national sovereignty, establish common minimal standards among its contracting states while guaranteeing cultural legal pluralism. Those minimal standards serve as a constitutional instrument of a ‘European public order’ according to the Court (Loizidou v Turkey App no 15318/89 (ECtHR, 23 March 1995) Series A no 310).

At the same time, there exist mandatory rules of EU law that have to be applied mandatorily – irrespective of the applicable law – by all Member States, an example of which is fundamental procedural rights such as the right to a fair hearing, competition law rules and provisions aimed at the protection of a weaker party in a legal relationship such as consumers and employees. In particular and with respect to fundamental rights it is noted that the Treaty of Lisbon (Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, [2007] OJ C 306/1, consolidated version, [2012] OJ C 326/1) rendered legally binding the EU Charter of Fundamental Rights (Charter of Fundamental Rights of the European Union of 18 December 2000, [2000] OJ C 364/1, (consolidated version 2012/C 326/02, [2012] OJ C 326/391)) and also made possible the accession of the EU to the ECHR. In the meantime, states have an obligation to respect the ECHR even when they are applying or implementing EU law. The cluster of those EU mandatory rules, which incorporate the human rights standards of the ECHR, can be labelled as ‘ordre public communautaire’.

The Europeanization of domestic private international law by way of implementing rules for a EU private international law was accelerated by the Treaty of Amsterdam (Treaty of Amsterdam amending the Treaty on the European Union, the Treaties establishing the European Communities and certain related acts (consolidated version), [1997] OJ C 340/01), which transferred competence in the field of judicial cooperation in →civil and commercial matters from the third to the first pillar. However, it is not yet possible today to speak of a unified European private international law that renders the national legislations in this field obsolete. The content and mechanism of ordre public have followed suit. Ordre public was considered to be the bastion of a state’s legal system that allowed it to oppose the application of a foreign law, including the law of other EU Member States. In the meantime, within the community of Member States of the EU and signatory parties to the ECHR certain minimal standards and mandatory pieces of legislation have emerged. These elements deploy two functions: (i) they harmonize in specific matters the defence of ordre public that the EU Member States will have to oppose vis-à-vis third states; and (ii) they reduce the chances that the Member States will raise among themselves objections on the ground of ordre public for such matters.


  • Jürgen Basedow, ‘Die Verselbständigung des europäischen ordre public’ in Michael Coester, Dieter Martiny and Karl August Prinz von Sachsen Gesaaphe (eds), Privatrecht in Europa – Vielfalt, Kollision, Kooperation, Festschrift für Hans Jürgen Sonnenberger zum 70. Geburtstag (Beck 2004) 291;

  • Jean-Paul Costa, ‘La Cour européenne des droits de l’homme: vers un ordre juridique européen?’ in Mélanges en hommage à Louis-Edmond Pettiti (Bruylant 1998) 165;

  • Jochen A Frowein, ‘La convention européenne des droits de l’homme comme ordre public de l’Europe’ in Collected Courses of the Academy of European Laws, 12 Collected Courses of the Academy of European Law (Martinus Nijhoff Publishers, 1990) 267;

  • p. 1460Jan Kropholler, Internationales Privatrecht (6th edn, Mohr Siebeck 2006);

  • Paul Lagarde, ‘Public Policy’ in International Encyclopedia of Comparative Law, vol 3 (Mohr Siebeck 1994) ch 11;

  • Franco Mosconi, ‘Exceptions to the Operation of Conflict of Laws Rules’ (1989) 217 Rec. des Cours 202;

  • Kent Murphy, ‘The Traditional View of Public Policy and Ordre Public in Private International Law’ (1981) 11 Ga.J.Int’l.& Comp.L. 591;

  • Andreas Spickhoff, Der ordre public im internationalen Privatrecht, Entwicklung – Struktur –Konkretisierung (Metzner 1989);

  • Ioanna Thoma, Die Europäisierung und Vergemeinschaftung des nationalen ordre public (Mohr Siebeck 2007).

This contribution reflects the personal views of the author and does not represent in any way the position of the past, present or future insititutions with which the author was/is/will be affiliated.