Public policy (law)

Under the ordre public (French for public policy ) is understood in private international law and public international law, the Basic of domestic values. Particularly understood in the field of international law, the reservation towards an award of an international organization or towards the application of an international treaty, if this essential domestic legal principles contradict.

The reservation of public policy occurs in two versions:

  • The conflict of laws the public policy proviso provides that foreign law is exceptionally then not apply if it is contrary to fundamental principles of domestic law. In Germany it is mainly regulated in Article 6 of the Introductory Act to the Civil Code ( BGB ).
  • The legal recognition the public policy reservation has to content that foreign decisions are exceptionally not recognized or declared enforceable if the recognition or enforcement with fundamental principles of domestic law would be inconsistent. In Germany he is including in § 328 paragraph 1 No. 4 Civil Procedure ( ZPO), Article 27 No. 1 of the Brussels Convention and Article 34 No. 1 EuGVVO regulated.

Between the two forms of the public policy reservation, there are many similarities. Thus, the general clauses in all cases are similarly formulated, it is always of " public order " or " basic principles " of the domestic law of the question. In addition, both with respect to the conflict of laws as well regarding the legal recognition the public policy reservation is accepted that the respective conditional clauses strictly construed and must be applied only in exceptional cases. Nevertheless, principles of interpretation can not be readily transferred. The interest in the application of certain foreign law, of which the conflict of laws the public policy proviso makes an exception, namely not to be equated with the interest in the recognition of foreign decisions which is broken by the legal recognition the public policy reservation.

Apart from the systematic predetermined division into a " conflict of law " and a " recognition law " proviso the public policy proviso numerous labels have been attached, which are intended to describe specific design concepts, such as " ordre public international", "mandatory universal ", " international law ordre public "," European public order ".

  • 2.1 sites
  • 2.2 sub-forms: substantive and procedural public policy
  • 2.3 Requirements for application 2.3.1 Public policy atténué de la reconnaissance
  • 2.3.2 estoppel

Collision Legal ordre public

The conflict of laws the public policy reservation always plays a role in civil law private international law is to be applied and the result of the applicable (foreign) law with the German legal system is incompatible. Also incompatible with our justice principles foreign legal norm may be brought to the application may, if the particular result of the application is acceptable. Other way around, a prima facie acceptable appearing legal norm lead to an application result which is not consistent with our understanding of the law, and therefore should not be used.

Localities

The conflict of laws ordre public clause is mainly governed by Article 6 BGB. The provision reads:

" A statute of another state does not apply if its application leads to a result which is essential principles of German law manifestly incompatible. It is particularly not apply if the application is incompatible with fundamental rights. "

Also article 40, paragraph 3 BGB is an expression of the conflict of law public policy.

Purpose

The purpose of the conflict of law public policy are mainly the following aspects:

  • Protection of substantive fundamental values ​​of their own legal system ( principle of substantive justice )
  • Avoidance of decisions within the country, the gross contradict our legal view ( imperative of national concordance or decision consistent domestic)
  • General clause -like protection to the validity of the so-called jus cogens, the general and at the same time compelling rules of international law ( international law aspect ), a recourse to the public policy of Article 6 BGB but is regarded by the prevailing view as unnecessary: The application of the general rules of international law had already secured by way of Article 25 sentence 2 of the Basic Law and its international law enforcement force. Hedging the validity of jus cogens over the much stricter of its presuppositions public policy (eg criterion of domestic connection, see below) is not necessary, because this a limitation of the application requirements of the mandatory rules of international law as part of the public policy tantamount. Article 25 sentence 2 of the Basic Law is universal and contrast suggests the existence of an international or international public policy in addition to the draft Law, Article 6 as national or IPR legal public policy. In contrast, in particular keeps the younger literature the national public policy for applicable: The requirement of a single cover ( so-called relativity of ordre public ) in so far abandoned, as this would affect the validity of the peremptory norms of international law, especially the internationally recognized human rights protection. It must suffice to ensure in international jurisdiction of a German court this an illegal right may refuse recognition already in accordance with the ordinary law Article 6 BGB. The requirement of a domestic or internal reference is to be pushed back depending on the quality of the international law violation. Above all, this wins the differentiation according to the gravity of the infringement of a rule of the global UN human rights treaties importance. Thus saith the criterion of whether the human rights of the nation-state leaves a certain latitude in the design, rather against a limitation of the condition of the internal reference and thus for maintaining the restrictive requirements of public policy. In contrast, a violation of public policy is already assumed when an internal reference is absent, provided that the breach of a human right is present, in which there is already an international and therefore recognized under international law minimum standard has emerged or the human right in its absolute protected core area ( synonym: inviolable essence ) is affected.

Exceptional nature

The public policy of Article 6 BGB is a strictly interpreted, the exception rule, because the legislature of the normalized in the draft Law, Private International Law will favor international private law legal entity and the decision harmony conscious decisions to purchase, which differ from those to be felled under its own law. Is a prerequisite to the application that the relevant se foreign law " with fundamental principles of German law is manifestly incompatible ", that is, as a result the core of the domestic legal order would touch them. An essential part of the German legal system are fundamental rights. The public policy is therefore seen as a break point for the fundamental rights.

Conditions for the application

The conditions of application of conflict of law public policy read:

Legal consequences

Due to the conflict of law public policy, only the affected individual foreign legal rule is excluded from the application if they are incompatible. In addition, the foreign law remains applicable and is even used to close a gap caused by the inapplicability. This serves the purpose of public policy, the foreign law, which is actually applicable only to the extent limit, as it is necessary to safeguard the substantive justice and national decision harmony. The international decision line, which the IPR currently serves should not be jeopardized by an arbitrary enforcement of its own laws. Only if can not find any analog or directly applicable matching requirements in foreign jurisdictions, German law is used as a proxy law. In practice, however, the gap closure by the German law most often what is owed typically the become necessary gap-filling due to actual lack of an alternative standard stock in foreign law.

Importance

The conflict of laws public policy is usually in legal relations between citizens of other cultures is important. The alignment in the European Union ( or the entire western legal system ) knows applications of public policy only in a few cases. More common point of conflict are legal records of the Shari'a or the Hindu law.

Examples

Although an accomplished abroad private divorce is generally recognized also in Germany, if the conditions under Article 17 of draft Law arriving for the application of foreign divorce law (so-called divorce statute ) have been complied with even if the grounds for divorce to the detriment of a partner, eg the woman. are narrower than in German law. This is true but not if the unsustainability of such a scheme from an extreme wrong weighting of roles results in marriage, in the discharge also total ultimately be seen more within marriage is no balance of rights and obligations of the partners. Through a one-sided Verstoßungsrecht marriage as a whole is referred to as the Institute of Community bond in connection with a breach of the principle of equal treatment zungunsten a relationship of domination of the man questioned, because the repudiation is as ubiquitous pressure medium in the potential discretion of the man. Through this one-sided Verstoßungsmöglichkeit the man's wife is not regarded as an equal partner in a marriage. This marriage believes that manifests itself in the divorce facts, contrary to Article 6 of the Basic Law. Also, the additional violation of Article 1 of the Basic Law arises from the fact that it is incompatible with human dignity, to keep women in a state of diminished rights. The time may also represent that no public policy violation exists when the wife agrees to the divorce. This is criticized with the argument already repudiation itself was a wife disparaging act A ​​court should thus for the validity of a divorce due to unlawful conduct of the husband cheap. Even the act, which is linked to the Verstoßungstatbestand, therefore contrary to public policy. (See AG Frankfurt / Main, IPRax 1989, p 237 f )

Legal recognition of public policy

The legal recognition the public policy of title has meant that foreign judgments shall be exceptionally refused recognition or that they are exceptionally declared not enforceable.

Localities

Similar rules are found in particular in § 328 paragraph 1 No. 4 ZPO, Article 27 No. 1 of the Brussels Convention and Article 34 of the Brussels I Regulation No. 1. Example is Article 34 Brussels I Regulation No. 1: " A judgment shall not be recognized if [ ... ] would be manifestly contrary to the recognition of public order ( ordre public) of the Member State in which recognition is sought ."

The provisions of § 723 paragraph 2 sentence 2 ZPO, Article 34, paragraph 2 of the Brussels Convention and Article 45 paragraph 1 Brussels I Regulation provide that non-eligible foreign decisions are not made ​​enforceable or that in the case of non-recognition ability already granted declaration of enforceability may be repealed.

In France, five recognition of obstacles are recognized since the decision Munzer / Munzer. One of these obstacles is a recognition ordre public clause.

In the Anglo - American legal system is the recognition obstacle " public policy" recognized the principle corresponds to the continental European " public policy " of title. The prominent case of fraud process however, is not treated as a case of " public policy" in the Anglo - American legal system, but forms an independent ground for denying recognition of " fraud". The concept of " fraud" has a wide scope and covers not only cases of fraud process, but any undue causing a judgment.

Sub-forms: substantive and procedural public policy

The applications of the legal recognition the public policy of title be divided into two categories.

On the one hand we speak of substantive public policy, if a foreign judgment recognition is denied on substantive grounds. This comes about in question, if a party has been sentenced abroad to enter into the marriage, to undertake a criminal domestic act or to pay " punitive damages " ( punitive damages ).

For other uses of the so-called procedural public policy, if the foreign proceedings with basic principles of German law is incompatible. This can for example be the case if a party has not been granted sufficient heard abroad, or if the foreign decision is based on a process of fraud.

Conditions for the application

Under what conditions is recognition of legal public policy reservation is used, is highly controversial.

Public policy atténué de la reconnaissance

In some cases it is argued the legal recognition the public policy of title have generally compared to its conflict of law public policy reservation less attack intensity (so-called " weaker legal recognition ordre public " or "public policy atténué de la reconnaissance "). However, it can not be quantified or concretize what is meant by a " lower attack intensity ."

Foreclosure

In addition, many different views are represented to the question of whether a party may also rely on the public policy proviso when the party concerned in the first State remedies are available or were, but it has not made use of these appeals, or makes. .

Regard, it is particularly controversial, whether the prohibition of any review of foreign judgments (so-called ban on révision au fond ) should be considered in the application of recognition as obstacles rating scale. Subtracting the prohibition of révision au fond as rating scale approach, it follows that the legal recognition ordre public clause allows only a limited control of foreign judgments and the erststaatlichen remedies if necessary take precedence.

Decisions of arbitral tribunals

The enforcement of many international arbitral awards such as by the rules of arbitration of the International Chamber of Commerce in Paris or the arbitration rules of UNCITRAL shall be based on the New York Convention. This looks, unlike arbitration rules based on the ICSD, seven reasons for rejecting the enforceability of an arbitral award by the State losing in arbitration proceedings, one of which is the public policy. This is particularly important in the context of investment protection, eg expropriation without adequate compensation of importance.

Future of legal recognition the public policy of title

At European level, it is planned to abolish the legal recognition ordre public clause in the long term, to increase the free movement of judgments. In particular, the European Enforcement Order, 2005 does not contain a conscious public policy of title, and also the EuBagatellVO and EuMahnVO, in force since 12 December 2008 or January 1, 2009, waive such a clause.

These trends are partly heavily criticized in the literature: commandments is not the abolition of the public policy of title, but just the reverse its widespread use. The only way to ensure that overseas deceived parties receive adequate legal protection and are not exposed to undue entering an compulsion.

After a mediating view it is not appropriate to completely abolish the public policy of title, nor to apply it too generous. Rather, it is required to maintain the public policy of title and interests of the parties to apply. An equitable interest, restrictive application could be attained in particular, if the ban on révision au fond is considered as a rating scale.

Analogy#Law Eminent domain
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