INTERNATIONAL ENCYCLOPEDIA OF COMPARATIVE LAW UNDER THE AUSPIC S OF THE TIONAL ASSOCIATION OF LEGAL SCIENCE EDITORIAL COMMITTEE R. DAVID » PARIS? H.EGAWA» TOKYO+ R.GRAVESON ‘ LONDON V. KNAPP + PRAGUE A. T. VON MEHREN » CAMBRIDGE Y. NODA ' TOKYO} $.ROZMARYN ’ WARSAW} V.M. TSCHCHIKVADZE * MOSCOW H. VALLADAO ’ RIO DEJANEIRO+ H.YNTEMA ’ ANN ARBOR} U. DROBNIG and K. ZWEIGERT * HAMBURG RESPONSIBLE EDITORS i VOLUME II PRIVATE INTERNATIONAL LAW KURT LIPSTEIN ' CHIEF EDITOR Chapter 11 Public Policy PAUL LAGARDE Professor at the University of Paris I~ Panthéou-Sorbonne (France) J.C. B. MOHR (PAUL SIERECK) » TOBINGEN MARTINUS NIJHOFF PUPLISHERS * DORDRECHT’ BOSTON LANCASTER Gi1. INTRODUCTION* ‘The problem. - The study of the conflict of Jaws is unlike that of an exact science. Notwith~ standing all the precautions taken by those who formulate a rule of the conflict of laws, it can happen that its application leads to an undesir~ able result. Further, the need to provide a cor~ recting mechanism for the conflicts rule is oft frowned upon. ‘The process of adjustment may concentrate ‘on the technique of determining the applicable law. This occurs when the applicable law is found not to be factually most strongly! or most closely ? connected with the issue. Legisla~ tion in some countries? and certain internation- al conventions‘ therefore provide exception clauses, based on the principle of proximity, which permit the substitution of the law with which the case is most closely connected for that indicated by the normal choice-of-law rule, ‘An adjustment may also become necessary because the substance of the laws conflicts. The court scized of the dispute cannot admit the application of the law designated by the choice~ of-law rule, if it would offend against certain notions of its own law which are regarded as essential or which would impede the realization of its objectives ~ in short if it is contrary to its ‘own public policy. ‘The exception of public policy does not op- erate only in the sphere of choice of laws. Itmay also rule out the recognition or the enforcement in one country of the decisions and judgments rendered in another. The special characteristics Of public policy where decisions are concerned will be discussed whenever it will be necessary, and principally when the effects of public poli- cy are examined, 2. Historical development. ~ In the conflict of laws, the operation of public policy became the + ‘Translated by Prof. K. Lipstein to whom the au~ thor expresses his warmest thanks. Thisis the terminology employed by the Austei~ AN Law on private international law (Bundesgeset= ter das internationale Privateci) of 15 June 1978, BG- BL. no. 304/1978, 28 Am,),Comp.L. 222 (1980) (Engl German); RabelSZ 43 (1979) 375, Rev.cri.d.ip. 1979. 176 (French). 2 "This terminology is more usual and isemployed, in particular, by the Rome Convention on the Law Applicable to Contractual Obligations of 19 June 1980, OJ EC 19380 L266 p. 1, RabelsZ 46 (1982) 196 (German), Rev.crit.d.ip. 1980, 875 (French) 1 In the forefront isthe swiss Law on private inter national law (Bundesgset= ber das internationale Privat- recht ~ IPR-Gesetz) of 18 Dec. 1987, AS 1988, 1776, object of doctrinal studies only relatively late ‘At the risk of excessive simplification one can detect over the ages three types of approaches to the problem; moreover they continue to a cer tain extent t0 coexist in contemporary legal sys- tems. ‘The oldest approach, which has reacquired a certain currency in the UNITED stares, selects among various conflicting laws that which “best”, i.e. which offers the most suitable solu- tion of the dispute. Thus according to Aldricus in the twelfth century, iftwo litigants of dif fer- ent origin pleaded different customary laws, the judge was to apply that which appeared to be better and more useful (quae potior et utlior vide- tr).5 CANON lawyers at the end of the twelfth century followed the same train of thought. While positing, in principle the application of the plaintiff's custom, they admitted that it should be disregarded in favour of that of the defendant, if the latter came “nearer to the truth”. Without straining analogies it can be said that certain AMERICAN authors are disciples of Aldricus inasmuch as they are highly critical of bilateral conflicts rules of a neutral character, in the style of von Savigny and favour the “bet- ter law principle”? The choice of the “better law” makes it possible to reach directly the law to be applied and eliminates the circuitous route via the exception of public policy. ‘The second approach starts from the assump- tion that certain provisions of the lex fori are fundamental and must be applied within the national territory in all circumstances inasmuch as they express public policy. Public Policy is thus treated as an autonomous connecting fac tor on an equal footing with nationality, free dom of choice, etc. This was the notion of Mancini summed up in the Preliminary Provi- 37 AmJComp.L. 193 (1989) (Engl), Rev.crit.d.ip. 1988, 400 (French) 4 See Rome Convention (supran. 2) art. 4, § and 6 pa. 2 in fine; Hague Convention on the Law Appli- ‘able to Contracts forthe International Sale of Goods fof 22 Dec. 1986 (Act.Doc.La Haye Extraord.Sess. (1987) 690) art. § par. 3; Hague Convention on the Law Applicable to Succession to the Estates of De~ ceased Persons of 1 Aug, 1989 (Act.Doc.La Haye 16 (1991) 1 2g) at. 3 par. 3 * Cited frequently, esp. by Spickhoff 27 See idem 7 Leflar, American Conflicts Law (ed. 3 Indiana polis a.0. 1977) § 107; Juenger, General Course of Private International Law: Rec.des Cours 193 (1985 IV) 118-387, 19956, 2865.11-2 Public Policy Z sions to the rrantan Civil Code of 1865 art. 12, drafted by himself: “Notwithstanding the pre~ ceding articles"! the laws, acts and decisions of a forcign state, as well as private arrangements and agreements, cannot oust totally or in part the laws of the Kingdom which lay down re strictions affecting persons, goods or acts or which concern public policy or proper be- haviour.”? Here public policy constitutes a pos itive connecting factor and not an exception to the application of the normally applicable law. It is not public policy which objects to the for- ‘eign law; rather foreign law (or foreign acts and decisions) is incapable of ousting the binding rules of the forum. The modern development both in legal theory and in actual legislation of absolutely binding laws (lois de police), the spa- tial application of which is determined unilater- ally with a view to their purpose and not in virtue of ordinary rules of the conflict of laws, may be attributed to the same inspiration. Side by side with this doctrine of Mancini, which established itself in rraty, spain and in the LATIN-AMERICAN countries and which was reflected in rRaNCr by Pillet, a third approach to public policy emerged. Today it is regarded as the most orthodox in the theory of the conflict of laws. Public policy is envisaged as an excep- tion to the operation of choice-of-law rules. It manifests itself by ousting the normally applica ble law and by replacing it by a rule which is usually, but not always (infra s. 62:,), bor- rowed from the lex fori. Some trace this notion of public policy to the distinction drawn by the postglossators, espe- cially Barfolus and Baldus,"° between odious and favourable statutes. The former cannot be ap- plied outside the territory where they are in force."" Dumoulin in the sixteenth century was of the opinion that at least the laws of a country * These articles had formulated conflicts rules based on nationality or on the autonomy of the parties. 1 “Nonostante le disposizioni degli articoli precedent, in nessun caso le lege gli atti ete sentenze di un paese straniero,¢ le private disposizioni convenzioni potranno derogare ale legeiproiitive del regno che concernano le persone, i beni o gli ati né alle lege riguardant in qual- siasi modo Vordine pubblico ed if buon costume.” Similar to art 26 of the project by the pHLcIAN jurist Laurent (cited by Jayme and Herth, Frangois Latirent und das Internationale Privatrecht ~ Tagung in Gent: IPRax. 1988, 125~127, 126 n. 5) which emumerates the vari~ ‘ous categories called by him “laws concerning the rights of society”. "© Spickhoff29 traces the distinction, although in a slightly different sense, to Guillaume de Cuneo. a war with France should not be applied.” This amounts to admitting a public policy exceptic ofa politcal character Much ier a the Sie teenth century, it was acknowledged in cre Many by Haeclter that “forcign laws may sane tion rights which run counter to the moral and religious principles, the notions of law and jus- tice and the demands of public policy, the maintenance of transactions and the concern for the economic welfare of the citizens on which our law is built.”"" As examples he mentions slavery, usury, interest, and the recognition of gambling debts. However, even if Waechter identifies the evil, he does not draw the conclu- sion that the foreign law must give way to the lex fori. Instead he merely suggests that the con- flicts rule of the lex fori should be so manipulat- ‘ed as not to require the application of such laws. Von Savigny was more precise without being absolutely clear, He admitted that in certain cir- cumstances “the judge must apply the law of his own country exclusively, even though accord~ ing to our principles the application of foreign law is required.” ' In his view these exceptions amount to two. First of all they comprise “laws of a positive kind which are strictly binding”, enacted not in the interest of individuals but in the general interest. Such were, in his view, the laws restricting the use of immovable property by Jews and laws prohibiting polygamy. When confronted with the application of these laws, every state was to be regarded as entirely isolat- ed. Exclusions of this kind affect all the persons concerned who happen to be within its territo- ry, irrespective of whether their status is gov- cerned by foreign law or by the lex fori, but the same exclusions do not apply outside the terri tory. This reliance on territoriality calls to mind that placed on “odious statutes” (supra n, 10) or on “lois de police” (laws on public security). The A frequently quoted example is that of the “English Question”. "The eNcuisi rule whereby sic- cession to realty devolves upon the eldest son is treated by the judge in an rratian city as an odious statute, which is inapplicable to land in Italy where the estate is shared equally by the descendants in ac- cordance with the principle developed by ROMAN law. It is possible, however, that the territorial char- acter of an odious statute was regarded as the normal connecting factor, especially in matters of succes "2 Ac chat time this was Turkey; see Spickhoff 33 "9 Cited by idem 37. On Waechter’s reliance on the lex fori see von Bar, Chr. I no. 4655s. 4 Von Savigny, System des heutigen rémischen Rechts Vill (Berlin 1849) 80.349.5 Introduction 11-3 second exception concerns institutions of for- ign law unknown in the country of the forum, such as civil death in rreNest law or slavery. Confronted with these the court of the forum will not apply them. ‘This refusal to apply for- cign institutions of this kind falls coday within the exception of public policy. Is true that the basis of this distinction is not, very clear, seeing that e.g. the prohibition of polygamy is allotted by von Savigny to the cate~ gory of laws of a positive kind which are strictly binding, although it could equally have been included in the second as an institution un- known in the country of the forum. Neverthe- less, vom Savigny’s view encompasses the two arguments which are most frequently em- ployed in order to make prevail in the interna~ tional sphere the notions of the public policy of the state of the forum, In other words it affirms, ‘on the one hand, that laws having the character of public policy cannot be replaced even by applying foreign law, because “they stand out~ side of the community of laws" and remain for this reason “outside the operation of the rules of the conflict of laws” '’ and, on the other hand, that the foreign law which is normally applica- ble can be excluded in exceptional cases The dual character of these processes was strongly criticized by Franz Kahn in his famous article on public policy. He opposed the notion of “laws of a positive kind which are strictly binding” for, in his view, no laws exist which claim to apply absolutely to situations which are centred entirely abroad and have no connection whatever with the forum. He denied also that foreign law is excluded in exceptional circum- stances only and provided many examples of its frequent occurrence. Nor was he more open to Mancini’s doctrine on the ground that it was impossible to detect a satisfactory criterion for delimiting laws concerning individuals and. Jaws concerning society as a whole. In his view every substantive law has its own sphere of op- eration which is defined by a connecting factor which can vary according to the function of the interests served by the rule. The rules of the +5 Francescakis, Nouveau 162—163. 6 Bartin, Etudes de droit international privé (Paris 1899) 189~ 284 "7 Von Bar, C.L., ‘Theorie und Praxis des Interna~ tionalen Privatrechts I (Hannover 1889) 132. CC are. 11 par. 3: “Notwithstanding this article and the article preceding it, prohibitory laws con- cerning persons, their acts, their property and laws which represent public policy and bonos mores will not conflict of laws had not defined those conneet- ing factors in sufficient detail, and it was the task of moder scholarship to invent subsidiary connecting factors which would enable the lex fori to apply in the interest of public policy, even if the regular connecting factor supplied by the rules of the conflict of laws did not point to it. ‘Thus there appears in Kahn’s argument the no- tion of Inlandsbeziehung (connection with the forum), ie. a Kink with the territory, which plays an increasing part in contemporary law, especially in GERMANY and in SWITZERLAND. This notion is not, however, entirely unambiguous, It can in fact justify the immediate application of a rule of the lex fori or it can disclose in a particular case the shocking consequences of the application of the foreign law and cause its ex- clusion. This means a return to the dual charac- ter of the processes set out by von Savigny. In particular the second process developed by von Savigny has retained the attention of its fol- lowers. In reance, Bartin'® gave the notion of public policy a systematic foundation, as an ex- ception to the application of foreign law re- ferred to by a bilateral conflicts rule. The most recent writers have followed this analysis e.¢., ‘Maury. In GrRMANY Carl Ludwig von Bar adopt- ced the same systematic approach.’ 3. National and international codification. ~The legislative development reflects the wavering in the doctrinal development described above: On the one hand, public policy is determined by certain mandatory laws of the forum which are generally prohibitory and, since constituting an absolutely binding minimum standard, applica ble without question. On the other hand, there appears the notion that public policy forms an exception to the application of the law which governs normally if it would lead to an unac- ceptable result. ‘The first notion features in the older statutes which were inspired by the ideas of Mancini. Apart from the Preliminary Provisions of the MAMAN Civil Code of 1865 art. 12, mention must be made of an almost identical provision in the spantsit Civil Code of 1888 as well as of lose their effect asa result of laws or judgments or of transactions or agreements passed of made abroad.” (No obstante lo dispuesto en este aticuloy en el anterior, las leyes prohibitivas concernientes alas personas, sus actos @ sus bienes, y las que tienen por objeto el orden piblico y las buenas costumbres, no quedaran sin efecto por leyes 0 Sentencias dictadas, ni por disposiciones 0 convenciones acordadas en pais extranjero.”).1-3 Public Policy certain SOUTH AMERICAN codes.” In its original formulation in 1896 the Introductory Law to the GERMAN Civil Code art. 30°° combines the two notions, as the legislative history of the text shows." During the same period international con- ventions, especially the Hague Conventions Prior to the First World War, did not contain a general public-policy clause, However, some of them set out those provisions of their national Jaws which the contracting states were permit ted to continue to apply, thereby diminishing the sphere of unification in matters of conflict of laws achieved by the conventions. Similar- ly the Bustamante Code enumerates in art. 3, 4 and 5 those laws which express ‘“intemational public policy”, adding in art. 8 that these laws inhibit the recognition of rights acquired in ac cordance with the provisions of the Code.2® "9 ancENTINA: CC (1889) art. 14 (Makarov, Re- ccucilfQuellen 1 sub Argentine); wicaracua? CC (1904) art. VIM (idem sub Nicaragua and idem, Quellen (ed. 3) 174) 2 “The application of a foreign law is excluded, if the application would offend against bonos mores or the purpote of a German law." ("Die Anwendung ines auslindischen Gesetzes ist ausgeschlossen, wenn die Anwendung gegen die quen Sitten oder gegen den Zaveck eines deutschen Gesetzes verstofien wiie,”), 2" Art. 30 combines the provis inary drafts inspired by two cor Kahn 1783. 2 See e.g. the Convention for the Regulation of Conflicts of Law in Matters of Marriage of 12 June '902 (Act.LaHaye 3 (1900) 237) art. 2. 2 See Parra Aranguren, General Course of Private International Law. Selected Problems: Rec.des Cours 310 (1988 I) 10-223, 1058,, 935. se application de dispositions du droit étranger est exclue sielle conduit dun résultat incompatible avec ordre ‘public suisse.” fi Fundamentals of Civil Legislation art, 128 (Makarov, Quellen (ed. 3) 242) % Law on private international law and procedure of 4 Dec. 1963 art. 36 (Sb. 1963 no. 97, Bull Cacch L 4 (1963) 249 (Engl), Bulldr-tchécosl. 21 (1963) 273 and Rev.ctitdip. 196s, 614. (French), Makaroe, Quellen (ed. 3) 293 (Czech. German) “7 Law on private international law of 12 Nov. 1965 att. 6 (D2.U. 1965 no. 46 pos. 290, 16 LE Eur. 201 (1968) (Engl), Rev.crit.diip. 1966, 32) and Drpolon.comtemp. 1967 n0.7-8, 79. (rrench), Makarov, Quellen (ed. 3) 184 (Pol.{German)). * Civil Code (1966) at. 23 (Rev.crit dip. 1968, 369 (French), Makarov, Quellen (ed. 3) 197 (Pore German)) isions of two prelim- niflicting notions; see 6 By contrast, modern legislation af timed in the clearest terms the notion of public policy * the basis for refusing to apply foreign law. For instance, the swss Law on private internation Tae (supra, 3) ant. 17 sates: “The applicatios of rules of foreign law is excluded if st woult lead to a result which is incompatible wit Swiss public policy.” All recent EUROPE codifications contain a general cause draftet on these lines, among, them, in chronolog order, those of the former sovIET UNION, CaBCHOSLOVAKIA,2” POLAND, “7 PORTUGAL SPAIN, AUSTIIA,?? HUNGARY, ?" TURKEY, O° mcr YUGOSLAVIA, BULGARIA, SWEDEN,“ Ge Many," and soon of rrazy.!? And even if i matter is not codified in the uNtrap INGO? general clause of public policy (ordre publi) Fo, tures in_ ENGLISH. private intermational Jo General public-policy clauses are to be fo 2 Dera of 31 Moy 1774 3 (Rev.critd..p. 1976, 397. 420 (French), Rabels2 3 {ig7s) 704 ei Maks, aon (ed 3) 258 (Span oa fon private intemational law of 15 June 70 Bakes no. 1fig79 om paiva era 3 Deeree-Law no. 13/1979 00 pei é tional law of 1 July 1979 art.7 (MK, no, s3)197% Rev.critd.i.p. 1981, 161 (French), 55 Tul (1980/81) (Engl), eee 3 Law on private international law and intern’ sional el proedre of 33 May 1982 at 5 (Res Gaz, of 22 May 1982, Rev.ctitd.i.p. 1983+ (French), RabelsZ 47 (1983) 131 German) og, 3) Law on Private international aw of 5 J29 ee art 4 (SILY. 23 July 1982 mo. 43 pos. $25, in fO8 Since en 9833) AmgCompL. 2 (989) (Engl), Rev.crit.di.p. 1983, 353 (French), . 1983, 6 and RabelsZ. 49 (1985) sa4 (German). 34 Family Code (Fam.C.) of 18 May 1985 2! es (DV no. 23 of 22 March 1968, Rev.critd.ip. 7 823 (French), RabelsZ $1 (1987) 238 (German) 35 Law on intemational questions of parental tion of 30 May 1085 § 12 (SES 1985 n0. 3 Rev.rit.d.i.p. 1987, 198 (French). Se 34 Introductory ‘Law to the Civil Code (hy trod.Law CC) as amended by Law of 25 July aa art 6 (BOB, T riya, Rev.enitaip. 1987, 172 (French), RabelsZ 50" (i986) 663, (German), 27 Tne.Leg.Mat. 1 (1988) (Engl), Riv.dieincpriv-P 1986, 718 (German)) pat 27 ‘Draft for the Reform of the Preliminary Prove sions ofthe Civil Code at, 4 (Riv dint pry PO 1989, 932, see RabelsZ, $4 (1990) 735-738). CF lim.Prov.CC (1942) art. 31 still in force Dicey and Morris | Rule 2.1 Introduction 113 many statutory codifications in arMICA,? ASIA warvon,"? the FaR EAST! and LATIN: AMERICA. However, the Louisiana Law of 24 July 1991 makes no mention of it. ‘What is true of national codifications also holds good for international conventions. All Hague Conventions concluded after the Second World War dealing with the conflict of laws include an article on public policy. The word~ ing of this article in the Sales Convention of 15 June 1955 was still a little loose. It received its final form, although sometimes with a few adaptations related to the object of the conven- tion, by the Convention on the Law applicable to Maintenance Obligations towards Minors of % waver: CC (1948) art. 28 (Makarov, Recueil) Quellen I sub Aegypten); sentcat: Fam.C (1972) att. 851 (Makarov, Quellen (ed. 3) 234); Ganon: CC. (1972) art, 30 (ibidem 117); nuRUnDI: Code of persons and the family of 15 Jan, 1980 art. 10 (Rev.crit.d.ip. 1981, $84); BURKINA FASO: Code of persons and the family of 16 Nov. 1989 art. 1010 (ibidem 1991, 221); SUDAN: Law of 16 Feb. 1984 art. 16 par. 2 (ibidem 1992, 165) “ xuwarr: Law no. § of 14 Feb. 1961 art. 73 (Makarov, Quelien (ed. 3) 138); Jonvan: CC (1976) #29 (Rev.critdi.p. 1987, 643, 646); NORTH YEMEN: aw of a1 April 1979 att. 38 (ibidem 1987, 650); SOUTH YEMEN: CC art. 39 (ibidem 1987, 654); UNITED ‘van maris: Code of civil eansctions (1983) att.27 to be read together with art 3, setting out the rules of public policy (ibidem 390); see also the Draft Uniform Gove of the Ate League, iden 1984, 383. # ‘mananp; Act on Conflict of Laws.B.E. 2481 ‘of 10 March 1938 (Makarov, Quellen (ed. 3) 279) pis 35 Tatwan: Law of 6 June 1953 (ibidem 272); ‘um Kona Law no. 966 of 1 Jan. 1962 (ibidem 152 (German), Rev erie. dip. 1972, 347 (French)); CHINA °C (1986) art. 150 (Rev.crit.d.i.p. 1987, 465 (French)); Jaeans Horei of a1 June 1897 (Makarov, Quellen ie 3) 148), rev. 28 June 1989 (RabelsZ. $4 (1990) 379 ferman), Rev.eritd.isp. 1990, 844 (French)) art. 33. uRUGUAY: CC (1868) as amended 3 Dec. 1941 art 2404 (Makarov, Quellen (ed, 3) 308); mnazit: In= trod.Law CC (1942) art. 17 (ibidem 53); venu: CC. (984) art. 2049 (RabelsZ, 49 (198s) $22 (Span./Ger- Dat), Revecritdi.p. 1986, 193 (French));, exico peetee oF 11 Dec. 1987 and 7 Jan. 1988 (DO 7 Jan.) HE 15 par. 2 (PRax, 1989, 111, 119 (German), ev-eritip. 1980, 383 (French)) Ine t8¥e Convention on the Law Applicable to {ntemational Sales of Goods (Convention de La Haye ae le ‘oi applicable aux ventes d caractére international ‘obits mobster corporels)of 13 June 1935 (s10 UNTS ai art. 6; “In each of the Contracting States the application of the law specified by the present Con UGtson may be disregarded fr reasons of public pol 24 Oct. 1956. This restricted the rejection of the normally applicable law to cases where the ap plication of that law was “manifestly” incom- patible with the public policy of the court seized with the dispute. The Rome Convention on the Law Applicable to Contractual Obligations of 19 June 1980 (supra n. 2) art. 16 uses the same wording, as do certain conventions sponsored by the International Commission on Civil Status."6 ‘This formulation, which has more or less become a model, may be compared with the somewhat less precise wording of the Inter-American Convention on the General Rules of Private International Law of 8 May 1979. 44 Convention on the Law Applicable to Mainte- nance Obligations Towards Children (1956) art. Convention Concerning the Jurisdiction of the Au- thorities and the Law Applicable in Matters of the Protection of Minors (1961) art. 7; Convention on the Conflicts of Laws Relating to the Form of Testa mentary Dispositions (1961) art.7; Convention on Jurisdiction, Applicable Law and Recognition of De- ‘rees Relating to Adoptions (1965) art. 15; Conven- tion on the Law Applicable to Traffic “Accidents (1971) art. 10; Convention on the Law Applicable to Products Liability (1973) art. 10; Convention on the Law Applicable to Maintenance Obligations (1973) art. 11; Convention on the Law Applicable to Matri- monial Property Regimes (1978) art. 143 Convention ‘on Celebration and Recognition of the Validity of Marriages (1978) art. s and 14; Convention on the Law Applicable to Agency (1978) art. 173 Conven tion on the Law Applicable to Trusts and on their Recognition (1985) art. 18; for sources, see Permanent Bureau of the Hague Conference on Private International Law (ed), Recueil des ConventionsjCollection of Conventions (1951—1988) (The Hague 1988). Con- vention on the Law Applicable to Contracts for the International Sale of Goods (supra n. 4) art. 18; Con- vention on the Law Applicable to Succession to the Estates of Deceased Persons (ibidem) art. 18. 45 See e.g. the Munich Convention on the Law Applicable to Surnames and Forenames of § Sept. 1980: Commission Intemationale de Etat Civil (ed.), Conventions et Recommandations 1956-1987 (Stras- bourg 1988) 254 46° Art. § (RabelsZ. 44 (1980) 379): “The law de- clared applicable by a convention on private interna~ tional law may be refused application in the teritory ofa State Party that considers it manifestly contrary to the principles of its public policy (ordre public).” Differently from the Conventions cited previously, the Inter-American Convention does not limit the ‘exception of public policy to the case where che appli- cation of the foreign law offends against public policy. ‘The court seized of the dispute can consider in abstac- to whether the law itself is manifestly contrary to the principles of its public policy.11-4 Public Policy 4. Plan of the work, ~ Starting from the for- mulation of the exception of public policy by modern legislation to the effect that the applica ble foreign law is rejected if its application leads toa result which is incompatible with the public Policy of the country of the forum, it appears that the court seized of the dispute must extend its serutiny in three directions before deciding to disregard the foreign law and to draw the consequences of its rejection, First, it must ex- amine the foreign law and must not start from the lex fori, at least in principle (subch. II), Since the exception of public policy operates subject to the relative effect of proximity and gravity 8 ube. III), the court seized of the dispute must to determine what the result of the pplication of foreign law would be, ‘This result must chen be compared with another legal systom 2 standard (subeh, IV) which is most frequent, but not always, that of the forum in ord fo assess its possible incompatibility ee - policy, If iti found to be incompanible re mains to draw the consequences. This requi that the effects of the operation of public ee should be examined under a searching lig! (subch. V).11-6 Il, SCRUTINY OF FOREIGN LAW __5- If public policy is a ground for rejecting foreign law itis clear that the judge must exam— ine the foreign law before he rejects it. It is even 4 practical as well as a theoretical necessity. It is @ practical necessity if one wishes to limit the realm of the exception of public policy, which is generally regarded as a disturbing factor, and to reinforce the positive character of private in- ternational law, It is obvious that if one seeks to understand the applicable foreign law, one is more likely to apply it effectively than if one starts by examining whether the corresponding rule of the lex fori itself represents public policy. Indeed if one began with a particular rule of the lex fori in order to assert its character as a rule of international public policy, public policy would become a preliminary issue before applying the rule of foreign law indicated by the Gonflct tule, while in fact it is only a corrective However, now as previously the practice of the courts has not always confirmed this obvi- ous Se The theoretical model is sometimes in two respects which, for the purpose of separating them from cach other, must re- main distinct analytically. The first modifica tion is derived from a notion of public policy which may be called abstract and aprioristic. It induces the judge (and sometimes also the legis- lature, supra n, 25s.) to attribute the character of Public Policy to certain provisions of the lex fori and, consequently, to dispense with a Preliminary examination of the foreign law, whenever the dispute concerns the same matter the provisions of the lex fori (ina div. A). he second modification is even more incisive, Here the judge does not proceed by eliminating ES applicable foreign law; instead he holds that the dispute falls within the territorial applica~ ion of the corresponding rule of the lex fori us feptesents not so much a modification of ihe exception of public policy than its climina- Hor altogether by a concurrent process which Ha gts i possible to return to the application of the lex fori by other means. However, the divid- ing line between these two processes is far from G[eat and justifies the discussion of some further levelopments (infra div. B) "7 Sce on these problems, Lagarde 1185s, A. THE THEORETICAL MODEL AND ITS MODIFICATION 6. The examination of judicial practice set ‘out below suggests the following working hy- pothesis: A certain correlation exists between the nature of the conflicts rule and the manner in which public policy intervenes. The classic bilateral rules of the conflict of laws are neutral in character. They rely on connecting factors normally based on the principle of a close con~ nection which takes no notice of the substantive content of the conflicting laws. It is precisely this neutral and blind character which justifies the corrective operation of public policy. How- ever, this corrective mechanism can only inter- vene appropriately if the judge has taken notice of the foreign law referred to in an abstract manner and if he has found that it is incompat- ible with the public policy of his own legal system. It is quite another matter when the conflicts rules embody a substantive element, either by way of alternative or cumulative rules, enacted with the purpose of reaching in international relations a certain substantive result (e.g. the es tablishment of a legal relationship between par- ‘ent and child or the validity of an act) or at least with a view to providing the greatest possible opportunity for bringing about this result. It might be thought that the formulation of such a special conflicts rule satisfied the local legisla ture and that the exception of public policy would have here the same function as for the other conflicts rules. This is sometimes the case However, it is not surprising that the court in the country where such legislation applies holds that the solution which its own legislature wish ¢s to promote in international matters ~ and which ex hypothesi has already been introduced as part of its own law ~ is applicable as repre~ senting international public policy and that itis neither necessary nor even useful to examine the © various laws referred to by the alternative con- flicts rule of the lex fori. The practice of the courts of certain countries in matters of tort and legitimation serves to throw light on this inter- relationship. ere117 Public Policy i, Neutral Conflicts Rule 7. Tort, ~ rweNcn practice is instructive in this respect, Beginning with a decision of 1948 the Court of Cassation has held consis- tently that the lex loci delicti applies to torts. Most cases involved accidents in a foreign coun- try the law of which was less favourable to the victim than reNcH law. Consequently, the vie tim sought to persuade the court that the level of protection accorded by FRENCH law bore the character of international public policy and that the defendant's reliance on the law of the place where the accident occurred was therefore incf~ fective. Especially in the Krieger-case the courts below had followed the victim’s arguments and had stated that the reeNcu rules on tort “are part of French international public policy”..” The Court of Cassation quashed the decision (supra n. 48) and restored the normal chain of reason~ ing which starts with the examination of for~ eign law. The question arose again in FRANCE after the adoption of the Law of 5 July 1985 granting full compensation for personal injuries to vie~ tims of road accidents, even if caused without fault. Victims of accidents abroad claimed — with the support of certain courts of appeal — that this Law represented international public policy and must therefore replace the foreign Taw which was otherwise applicable. Once again the Court of Cassation quashed the deci= sion of the court below on the ground that the Court of Appeal had failed to provide a legal basis “in deciding for these reasons, while Spanish law was alone applicable, and for fail- ing to investigate why that law was manifestly incompatible with public policy in the interna~ tional sense”. The practice of the Court of “* Cass.civ. 25 May 1948, Rev.ctitd.ip. 1949, 89 note Batiffol; — 30 May 1967, ibidem 1967, 728 note Bourel; ~ 15 Dec. 1969, ibidem 1971, sta 1 Cases of this kind now come within the com= pass of the Hague Convention Concerning the Law Applicable to Traffic Accidents of 4 May 1971 (063 UNTS 411) which is in force in mance. This Con. Yention does nor change fandamentally the problem a raised in the text above, for in most eases it leads in fact to the application of the law of the place where the accident occurred. 5 Cour Paris Oct. note PL. it Law no, 85-677 on facilitating the situation of traffic victims and on accelerating indemnity proce- dures (Loi tendant & Vamélioration de ta situation des victimes d'accidents de la ciculation et d Vacctlération des 1963, Rev.critd.i.p, 1964, 332 10 f Cassation is therefore ee ie oe fort, where the FRENCH conflicts rule is neues” radar eee pursue a substantive purpose, judge must follow the model paetem and rit ‘examine the substance of the foreign law raising the exception of pul Boel aise! GERMAN law furnishes interesting wet proof. GERMAN writers state that in ee a ‘od damage caused abroad to foreigner the fe delicti applies, 8 but that the exception of ae, policy will be raised if che fx foci delet fs, favourable to the victim than GERMAN IW cxnyta lar as dtinet from rent Lay 5 to start from an apriristic notion of public Te icy, but the reason may be found in the face" the GERMAN conflicts rule in question is In fact, tral, ora least is less so than the #RENCH, 1 in the case of a “tort across frontiers”, where place of the injurious act differs frome where the damage occurred, GERMAN IW vours the victim as a matter of Be z officio obliges im this case the judge to apply Oi the law which is more favourable t0 TS” tim. Itis therefore understandable that he tion of the more favourable law has its ep sion on the manner in whieh the excep sublic policy is allowed to intervene: me eampaion clauses. ~ Exemption oo whereby a debtor i relieved in tte of 0 Fi ce his liability under a contractual obligatiN’ ine quite generally subject to the aw Bowers contract.%* The question as to whet hg clauses are compatible with public Poly Woy. such clauses are treated as valid by a fori bas ering the contract but void by the led to different answers z Jn connection with a maritime arr goods from Shanghai to Saigon (t ee in territory) the FRENCH Court of Cass jage of 6 july procédures d'indemnisation) of July 1985; JO J P7584. 199 354 5 Cass.civ. 6 June 1990, Rev.critd iP, 19h", note Bourel; see esas “casscrim. 26 April 19% Gaz.Pal. 1990. 2. 51 casted $51 the damage was caused by & cent special publie-policy clause of Introd.Law (formerly art. 12) would apply ~ to be © the subsequent subchapter (infa s. 355) 5 Spickhoff 196-197 with copious Fe the lcerature, ee 85 See Miinch.Komm.(-Kreuzer) art. 3! with references; Kropholler 432. ot # See Lager, Les clansen exonértnie tes sabilité en droit international privé: Ghestin (CO) cg clauses limitatives ou exonératoites de respons en Europe (Paris 1991) 17-41, esp. 325% erences © 508" Scrutiny of Foreign Law 11-9 1950%7 treated as void a clause exonerating the cartier of his liability on the ground that it “was contrary to the rules having the character of public policy of the law of 2 April 1936.” More recently, with reference to a sale subject to the Hague Convention of rs June 1955, the same Court of Cassation quashed a decision of a Court of Appeal which had believed that it could apply directly ~ probably on grounds of public policy ~ the recut law restricting the validity of such clauses to contracts concluded between professional people engaged in the same specialization, The Court of Cassation ob- jected that the Court of Appeal had not sought to determine the law governing the sale “which governs the validity and the extent of clauses exempting from liability for warranties". In the first case the Court of Cassation followed a slightly modified model by starting from the PRENGH rule which it characterized as being a rule in the nature of international public policy. In the second, the Court of Cassation instructed the Court of Appeal to comply with the general principle and to start by examining the rules of the normally applicable law. "The reason for this divergence seems to lie in the difference in substance between the con flicts rules applicable in the two cases. Insofar as carriage of goods by sea is concerned, the deci- sion of 1950 (supra n. $7), which applied FRENCH law directly not only to bills of lading issued in France but also to bills of lading issued in respect of goods destined for France anticipated the unilateral conflicts rule adopted some years lat~ cer on by the Law of 18 June 1966 art. 16. On the other hand, in the case decided in 1989 (supra n. 8) the applicable rule of the conflict of laws ‘was bilateral and neutral, indifferent to the re~ sult envisaged by the applicable law. A devia tion from the classic approach in matters of public policy would have contravened the spirit of the conflicts rule. On the other hand, it ap- pears more justified if the conflicts rule is an alternative one. ii, Alternative Conflicts Rule 9. Recognition and legitimation ~ French prac- tice. ~ The practice of the FRENCH courts 1s of 57 Cass.com, 21 Feb. 1950, D. 1950, 557 note Ripert, Rev.crit.d.i.p. 1950, 427 note Delaume 3 Cassciv. 4 Oct, 1989, Rev.crit.d.i.p. 1990, 316 note Lagarde, Clunet 1999, 415 note Kahn, D.S. 1990, 266 note Audi 89 See on the same subject Cass.com. 16 April 1991, Bulliv. 1991 IV 105 no. 147 0" Loi no, 66~420 sur les contrats daffrétement et de interest since it shows that even if the FRENCH. notion of international public policy in respect of the particular subject matter has changed completely between the 1960's and the 1980's, the manner in which public policy intervenes has remained constant. Twenty-one years apart the Court of Cassa~ tion had to try the same type of cases. Both cases concerned litigation involving a succes- sion which, upon the death of the father, gave rise to a dispute between an adulterine child of the father recognized by him (in the first case), recognized and legitimated by the marriage of the father and the child’s mother (in the second cas), and the legitimate descendants of the fa- ther. In the first case, TurKisit law, which applied in virtue of the conflicts rule then in force, treated the recognition as valid. However, the Court of Appeal, approved by the Court of Cassation, held the recognition to be invalid on the ground of rreNcit international public poli~ cy without paying regard to the substance of ‘rurkistt law, but by considering only FRENCH law. In the opinion of the Court of Cassation in virtue of article 335 of the French Civil Code, the recognition in France of an adulterine child is void for being struck by a nullity derived from public policy, irrespective of the nationality of the father or of the child”. The preliminary stage at which the foreign law is examined was omitted altogether. One expla- nation has been that the Court of Cassation could dispense with it because the result would have been the same in any case." Tn the second case, which was decided after the rENcH Law of 3 Jan. 1972 had abolished the existing restrictions on the legitimation of adul- terine children, the adulterine child claimed to have been legitimated by the marriage of its parents. However, the Court of Appeal held in accordance with the rules of the conflict of laws that the validity of the legitimation had to be determined according to BELGIAN law. This pro- hibited the legitimation of adulterine children, and in the view of the Court of Appeal this prohibition was not as such contrary to FRENCH public policy. The judgment was quashed nev- transport maritimes of 18 June 1966, JO 24 June p. $206, 5" Cass.civ. 3 June 1966, Rev.critdi.p. 1968, 64 note Derruppé, Chiet 1967, 614 note Malaurie; Cass.cv. 12 May 1987, Clunet 1988, 101 note Ni- boayet-Hoegy. © Rev.critd.ip. 1968, 65 6 Note Derruppé, supra n. 64L-10 ertheless on the ground that “the principle that by the marriage illegitimate children, even if conceived in adultery are legitimated, repre- sents today a fundamental notion of Freiich haw, Consequently Belgian law must be disregarded on grounds of public policy”. The solution is the opposite of that pronounced in 1966 because in the meantime reecut domestic law had been liberalized, and the second decision relied on the “railed “actuality” theory of public policy. jis posits that the court should approach pub lic policy in the light of the day when it gives ita decision and not of the time when the fhets in Issue took place. Above all, and most impor~ tantly in the present context, the Court of Cas sation displayed in the second as in the first case 4 magnificent indifference to the substance of the foreign law which was normally applicable. In both cases the court started from the provi sion of the recut Civil Code and imposed it upon international situations in the name of Public policy, regardless of the normally appli- cable foreign law. This method is the oppevite pr that resorted to in matters of tort (supra. 7), but this difference coincides, atleast today, wick tule. As regards the recognition of illegitimate children and theit legitimation ewcn law hag adopted alternative choice-of-law rules inten. ed to favour the validity of both, 10, Belgian practice. — In a case decided in 1986” the betcian Court of Cassation followed the genctal model by holding that the provision of the rattan Civil Code permitting the estab lishment of adulterine parenthood was not cone trary f© BELGIAN public policy, even if'it affect. eda Belgian defendant. The latter laimed that the weuctan CC art, 331 prohibiting the estab lishment of such a parenthood represented ine femational public policy, but the Court of Cass sation retorted that Clanet 1988, 102 ( On this theory sce in particular De Angulo Rox Ariguez 369 and infra s. $4 “See CC art. 31116 and 311~19 (inthe word ing of the Law on filation of 3 Jan, 1972, JO s Jon Pe 145). A £8. 27 Feb. 1986, Rev.crit.belge 1989, 56 note Watt © idem 61. © See note Watt, supra n. 67 % See Rigaux I n0, 983 and 986, oat the Fequest ofthe father (CC § 1733) oF of the child (CC § 17404), 2 Publie Policy public poli- “Iw bearing the character f dome pipe cy wony et one eect pokey i acting this lw the legislate wished to scton 2 brine which rgd ntl fr he mo Naini necessarily the application in Bega oF every rle of foreign law which to the contary or different, even if it is sppllable accord arly mls ofthe conic of 1 bldg that the international public policy of Belgi ne nyo co heads of the cin bed om src 26h aan iC te deson 2 note ofthe development ofthe iss conc! Position of children born out of wedlock. ‘This decision forms a counterpart to 2 Prencit decision of 12 May 1987 (supra tee inasmuch as it confirms once again the theory of the “actuality” of public oly ee Cour, in applying public policy, followed the ardinary pattem of reasoning, it did 3 becats the BELGIAN conflicts il pease at tae one, relying in principle on the national law of the child and not Having our Ea substantive legal solution of any kind. 11. German prize. ~The to es at uae imation known in GaxMAN private BW Aes imation by subsequent marriage (CC $1719) and legitimation by an order ofthe court? 6 covered by two rules of the conflict of laws which differ in nature. One, being alternative in character, favours legitimation Oi aa tage; 7 the other, neutral in character, Prove only one connecting factor for legitima order of a court iad Insofar as public policy is concerned, corte courts do not seek to insist on legitimation PY order of the court, contrary to foreign 12 which does not know it, and follow in eee the model reasoning by first examining fresh law." As regards legitimation by yes Imarriag, ie might have been expected that CH MAN courts would hold the solution of ¢ ich prom Ja ttfod:Law CC (1g86) at. a par. which Pre vides in substance forthe alkerative application of the law governing the effets of marriage O national law of one or the other ofthe paren. 78 Introd.Law CC (1986) art. 21 par.2 Cae tional law of that of the wo parents acre which the child is to be declared legitimate). go, KG17 March 1987, IPRapr. 1987 no. 86, PRAY. 1988, 237 and note Dore, ibidem 222, sain, hy Uublc policy isnot offended by mucean aw whieh does not know legitimation, at the request of He child, ofa child borne by a woman engag father who had died (Brautkindlegitimation).3 Scrutiny of Foreign Law ne12 law to represent international public policy and would insist on its application, regardless of the law or laws which are applicable.”* In practice, CcERMAN law applies always in virtue of the GER- MAN conflicts rule — without the need to have recourse to the expedient of public policy whenever one parent is German or both par- ents, neither of whom is German, possess diffe ent nationalities and are habitually resident in Germany. In its purest form the problem of public pol- icy could therefore only arise if both parents were aliens possessing both of them the nation- ality of a state the law of which does not know legitimation by subsequent marriage. Never- theless the courts do not always have recourse to public policy in such cases, either because an insufficient connection exists with the forum nlandsbeziehung) or because in the particular circumstances of the case legitimation is not in the best interest of the child.” To conclude, it is not so much that GERMAN law favours legitima- tion as part of domestic and private internation al law than the interest of the child in the partic ular case, 12. Maintenance obligations. ~The interrela- tionship between the rule of the conflict of laws and the manner in which public policy inter- venes does not always manifest itself at the same time. Just as an alternative conflicts rule may make recourse to foreign law superfluous with- out examining whether it offends against public policy, so it may happen that a practice of the courts to the effect that a certain rule of domes tic law embodies international public policy an~ ticipates an alternative conflicts rule which will only be sanctioned officially later on. In FRANCe the practice of the courts in matters of maintenance obligations provides a good ex- ample, Fora long time the relevant FRENCH pro~ visions were regarded as laws concerning public order which apply to all those who “live’ (habitent) in France in the meaning of CC art. 3 par. 1.” Finally the Court of Cassation conced- ed from 1936 onwards” that maintenance obli- 78 Cf. before the reform of 1986, BGH 17 Sept. 1968, BGHZ, 50, 370, IPRspr. 196869 no. 127, de- claring on the ground of public policy the legitima- tion of a child borne of an adulterous union of a German mother with an Italian father, contrary to rTauiay law, For comments on this decision see Jayme an 7 See infra s. 2638; sce also Spickhoff 271 ~272. 77 BVerfG 30 Nov. 1988, IPRspr. 1988 no. 11 IPRax. 1989, 298 and note Sichr, tbidem 283. See infra 855, gations were governed by the law applicable to personal status, provided that the obligation in issue was not only provisional and that it was subject to the requirements of the maintenance creditor as well as to the resources of the maintenance debtor. In the end, while affirming that in principle the personal law applied, the Court of Cassation stated that “the maintenance obligation of spouses, being derived from the duty to aid and assist each other, isa fundamental rule of French public policy; even if it can be reconciled with different forms of allocation prescribed by for- eign law, it cannot be denied as such.”* This means that if the foreign personal law denies a married woman rights of maintenance alto- gether, mncu law will be applied. Thus fo- cused, the intervention of public policy trans- forms a bilateral conflicts rule of neutral character into a two-step conflicts rule incorpo rating a substantive criterion, The Court of Cassation has even gone a little farther. In 1971" it held that “the maintenance obligation is governed by the law which gov ems the family relationship, in the present case ‘Tunisian law, subject to the operation of French public policy which can intervene in order to ensure a minimum. of assistance by French law.”"" If public policy demands the minimum of assistance provided by FRENcH law, the con- flicts rule has become almost an alternative choice-of-law rule which might be formulated as follows: “A claim for maintenance is gov- ered at the creditor’s choice either by the law governing the family relationship or by French law.” The latter formulation (by way of an alterna- tive rule) is nearly identical with that adopted by the rencn legislature in 1972 in respect of a claim for maintenance by an illegitimate child against the putative father." However, this pro- vision has remained a dead leteer since the Hague Conventions of 24 Oct. 1956 and of 2 Oct. 1973 Concerning the Law Applicable to Maintenance Obligations (supra n. 44), both in 7 Casssreq. 22 July 1903, D.P. 1904.1.1975 Cass.req. 27 March 1922, Rev.d.ipp, 1924, 401 79 Cass.civ. 20 July 1936, Rev.critd.ip. 1937, 694 note Bariffol, Clunet 1937, 288, D-H. 1936, 474. Cassiciv. 17 Dee. 1958, Rev.critd.i.p. 1959, 691 note Déprez. ™ Cass.civ. 19 Oct. 1971, Rev.critd.i.p. 1973, 70 note Simon-Depitre, D.S. 197211634 note Malaure © Rev.crit.d.ip. 1973, 71 8) CC art. 311=18 (in the wording of the Law of 3 Jan. 1972, supra n, 66),| 1-13 Public Policy 4 force in FRANCE, have established on their part a two-step conflicts rule, similar to that formulat- ed in the case of 1958 set out above (supran. 80), which favours the creditor a little less than the alternative conflicts rule. B, DIRECT APPLICATION OF THE LEX FORT 13. The application of the lex fori by the cir- cuitous device of the exception of public policy after the normally applicable law has been ex- amined (at least according to the classic theoret- ical model) is not based on the same reasoning as the application of the same lex fori after it has been found that the issue is covered by the sphere of operation of the lex fori. However, if the reasoning is different, the practical results are almost identical. Also it is not unusual that in certain areas in the absence of a lead by the legislature (supra s. 1) resort is had by the courts indiscriminately to one or other of these pro- cesses. A few examples taken from the area of the protection of consumers in a broad sense will serve as illustrations. The intervention of the legislature for the purpose of determining the field of application of the lex fori (supra s. 2) has not always clarified the situation as much as could be expected. i Public Policy or Mandatory Rules? a. Contract by Estate Agents 14. Practice in Common Law countries. Leg lation in a considerable number of countries regulates the profession of estate agents with a view to raising their standards and makes the right of the agent to claim his commission from his client depend on having obtained a licence from the authorities. Ina number of cases courts in CANADA and AUSTRALIA had to deal with ac- tions for the payment of commissions in respect of sales of land situated in countries requiring a licence by estate agents doing business in coun- tries where no licences were required for exer cising the profession." 4 On these cases see Hartley 11155, esp. 11455. ®5 Bateman and Litman Real Estate v. Big T: Motel (1964), 44 D.LR.ad 474 (Sask.Q.B.), 86 Golden Acres _v. Queensland Estates, [1969] Qld.StRep. 378 (S.Ct.Brisbane). For this case see also Pryles, Reflections on the EEC Contractual Obliga- tions Convention ~ An Australian Perspective: North (ed.), Contract Conflicts. The EEC Convention on the Law Applicable to Contractual Obligations, A In a CANADIAN case" the agent was estab- lished in Alberta (where no licence was re- quired), and the contract was concluded there. ‘A court in SASKATCHEWAN (where a licence was required) allowed his claim for the payment of his commission in respect of the sale on an im= movable situated in that province. The court did not take into consideration whether the lo~ cal law applied on the strength of public policy Or required its application for the simple reason that the immovable was situated in the province. Hlartley (supra n. 84) approves of the decision but observes that the answer might have been different if the agent in Alberta had approached his vendor by a special offer or by publicity in Saskatchewa A different answer was provided in aus~ rmauta."® The land was situated in Queensland, the law of which required estate agents to pos~ sess a licence. The agent was established in Hong Kong where no such necessity existed, and the contract of agency provided expressly that HONG KONG law was to apply. At first in~ stance the Supreme Court of QUEENSLAND dis- missed the claim for the payment of commis- sions on the ground that the law of QUEENSLAND was the proper law and that the choice of the law of HONG KONG with the intention of evad~ ing the provisions of the law of QUEENSLAND, the proper law, was not made bona fide and offended against public policy. Pryles*” has of- fered a different explanation. In his view the rule of QUEENSLAND law requiring a licence ap~ plied to every activity of an agent in the state relating to an immovable situated there, irre- spective of what law governed the contract and where the agent had his establishment. This ar= gument reflects that of the AusTRALIAN High Court expressed on appeal."* This case shows the two approaches open to a court for reverting to the lex fori as well as the differences of their operation. The direct appli- cation of the lex fori on the ground that it is a law governing public safety (loi de police) pre~ supposes that a connecting factor has been shown to exist which justifies the inclusion of the issue within the spatial sphere of operation of the forum’s law of public safety. Comparative Study (Amsterdam, New York and. Oxford 1982) 323-346, xp. 331; 5 also Kelly, In~ Temational Contracts and Party Autonomy: 19 LC.LQ. 701~705 (1970) "7 Preceding note, 332. 48 Freehold Land Investment Ltd. v. Queensland Es- tates Pty. Ltd, (1970), 123 Commonw.LRep. 418 (H.C. of A.); see also Nygh, Conflicts of Laws in ‘Australia (ed. s Sydney 1991) 274 aia tei5 Scrutiny of Foreign Law 15. American practice. ~ Two cases decided respectively in 1969 by the NEW voRK Court of Appeals” and in 1973 by the Appellate Divi- sion of the Supreme Court” show that a return to the lex fori may also be based not on consid= rations Of protecting the party contracting h an agent but on quasi-political grounds involving the reasonable interests of the state of the forum. In the first of these cases a New York broker had made a written agreement with a New Jersey firm to bring it into contact with a French firm. The attempt failed, but the broker introduced the New Jersey firm to another ‘American partner. A verbal agreement provid- ced that the commission due to the broker for the first operation was to be carried over to the second. The NEw YorK Court of Appeals reject- ed the broker's claim for the payment of the agreed commission. It held that the verbal agreement was void under the Statute of Frauds of NEW York” although the same agreement was valid according to New jersey law. Even if the proper law had been the law of NEW JERSEY, NEW york had a legitimate interest to have its law applied. It sought to avoid that persons dealing with brokers in New York might be open to doubtful claims by these brokers, and intended thereby to maintain intact the reputa- tion of New York as a centre of international commerce, ‘The case of 1973 involved a claim by an Ital- ian business woman against the president of a branch of ITT for a sum representing her com- mission in respect ofa transaction concerning an immovable situated in Mexico. Through her good offices, in accordance with a contract to this effect concluded in California, it had been sold to a Bolivian purchaser. The plaintiff had carried out the brokerage in New York, which she had happened to visit. The Appellate Divi- sion dismissed the claim by relying once again on the Statute of Frauds of New York which required every person carrying out brokerage % Intercontinental Planning Ltd. v. Daystrom Inn, 24 N.Y.2d 372, 300 N.YS.2d 817, 248 N.Ead 576 (1969), 24 Syracuse L-Rev. 70 (1973) with comment Herzog, Clunet 1970, 733 % Pallavicini v. Intemational Telephone and ‘Tele- graph Corp., 41 A.D.2d 66, 341 N.YS.2d 281 (1973), 25 Syracuse L-Rev. 27 (1974) comment Herzog 9 NEW York Code of General Obligations 5. s~ 71. Sce subsequently the decision of the NEW YORK Court of Appeals in Andover Realty Inc. v. Western Electric Co., 64 N.Y.2d 1006, 489 N.YS.2d 52, 478 N.E.2d 193 (1985) applying the aw of New jensty on 11-16 operations in New York to be in possession of a licence. Obviously the claimant did not possess ‘one since she happened to be in New York on an occasional visit only. The application of the lex fori contrary to the provisions of the proper law of the contract was based in both cases on the interest of the state of the forum, but the means by which it was achieved comes nearer to the application of laws of public security than the exception of public policy.” 16. French practice, ~ In FRANCE the purpose of the Law of 2 Jan. 1970, the so-called Law Hoguet?® was to raise the standards of the profes- sion of estate agents by permitting the agent to claim a commission only if he held previous written instructions to this effect by his princi- pal. This Law, which is strictly applied in do- mestic law, has given rise to some problems when applied co international matters. It was applied spontaneously without giving grounds in a case where the immovable was situated in France, the selling principal was domiciled in France, but the agent was established in Bel- gium. On the other hand, the problem was at the centre of the dispute in a case where the French vendor was domiciled in France, the immov- able was situated in Monaco and the estate agent was established there as well.”® The MONE Gasque judgment condemning the principal to pay the estate agent his commission, although no written instruetions had been given, was re- fused enforcement by the court of Nice on the ground that the judgment offended against the provisions of the rrincut Law of 2 Jan. 1970 (supra n.93) which embodied public policy. This decision is open to criticism, for an estate agent established in Monaco cannot be re~ proached on legal grounds for having sold im- movables in Monaco in accordance with MONE~ Gasqux law without troubling to consider the requirements of FRENCH law because his client is a French national. It highlights, however, a ten- dency to resort to the device of the exception the ground that as the lex situs it had a preponderant interest in refusing a broker payment of a commission claimed in connection with a sae of a building situat~ ced in New Jersey on behalf of a New York client. % Law no. 70-9 regulating the exercise of certain activities relating to immovables and business assets (Loi réglementant les conditions dexercice des activités re latives dcertaines opérations portant sur les immeubles t les fonds de commerce) of 2 Jan. 1970, JO 4 Jan. p- 142. % Cassciv. 8 July 1986, Bull.civ. i986 1 190 no. 194, 9S Trib.gr.inst. Nice 24 April 1985, Rev.crit.d.i.p. 1586, 425 note Lagarde