A Study Of The Order Public In Private International Law

As a generally accepted system by scholars, legislation and judicial practice as well as international treaties, public order in private international law has a long history and profound content. Just as one scholar has pointed out, it is hard to find a legal doctrine, such as public order, which has endured extensive criticism and survived. This shows that research on public order of private international law has important theoretical value and practical significance. In view of this, this article from the perspective of private international law to explores the origins and developments and the general problems of public order and its comparison with the related concepts and legislation and judicial practice, public order in the international civil litigation and international commercial arbitration and in China’s private international law and other related issues. Apart from the introduction and conclusion, the text is divided into seven chapters.Chapter One deals with the origin and development of public order. This chapter discusses the origin and history development process of public order, including its theory and legislation evolution. The former deems that the theory evolution of public order which is consistent with the emergence and development of private international law, experienced the development process from earlier stage to 19th century and to the contemporary theory of public order; The later thinks that public order is generally recognized by domestic legislation as well as international treaties. On this basis, section Three of this chapter explores the establishment cause of public order from the perspective of academy, legislation and judicial practice, which proves the theoretical value and practical significance of public order.Chapter Two deals with the general problems of public order. Public order is indeed far from being easy to grasp, probably due to its vagueness and uncertainties. It is precisely because of this, so we need to start from the definition of public order to reveal its content and features and explore its nature, function, role and mode of operation, so that public order is more easily understood and more operational.This chapter is divided into four sections respectively on these issues, namely the definition, nature and function, role and mode of operation of public order.Chapter Three deals with the concept of public order and its comparison with relevant concepts. In the case of private international law, when the court need to invoke the public order to exclude foreign law or reject enforcement of foreign judgments or foreign arbitral awards, in addition to make the connotation and characteristics of public order clear, there is also a need to clarify the inter-linkages and differences between the public order and relevant concepts, such as international jus cogens, evasion of law, lois d’application immediate, public policy and the domestic public order in order to ensure accurate application of public order. This chapter contains five sections which elaborates respectively on these issues.Chapter Four deals with the legislation and judicial practice of public order. With respect to the legislation of public order, Section One of this chapter discusses its legislative form of domestic legislation and international treaties, the legislative approach of indirect restrictions, direct restrictions and the merger restriction and legislative standards of subjective and objective criteria theory. As to the judicial practice of the public order, Section Two of this chapter elucidates the judicial practice of civil law legal systems countries such as France and Germany and the Anglo-American legal systems countries such as United Kingdom and the United States. From the above mentioned, it shows that the countries are to restrict the application of public order in the legislative and judicial practice. On this basis, Section Three of this chapter also discusses a special trend of development of public order, i.e.,the expansion and reduce of the application field and scope of the public order,restricted application, application pre-requisite of public order, and the introduction of "international public order" concept into the application area of public order.Chapter Five deals with the public order in the international civil litigation. In addition to application in choice of law stage, the public order is also applied to the fields of international civil litigation, such as jurisdiction, service of documents, investigation and evidence collection as well as the recognition and enforcement of foreign judgments. Section One of this chapter discusses the jurisdiction and public order, mainly the relationships between exclusive jurisdiction, forum non conveniens, as well as jurisdiction agreements and public order. Section Two discusses the extra-territorial service and public order, including the legislation and judicial practice of public order in extra-territorial service. Section Three discusses the extraterritorial evidence-taking and public order, including the legislation and judicial practice of public order in evidence-taking. Section Four discusses the recognition and enforcement of foreign judgments and public order, including the legislation and judicial practice and restricted application of public order in the recognition and enforcement of foreign judgments.Chapter Six deals with the public order in international commercial arbitration. In addition to application in choice of law stage, the public order is also applied to international commercial arbitration such as the arbitrability, application of law and recognition and enforcement of foreign arbitral awards. Section One of this chapter is an analysis of arbitrability and public order, mainly the association and difference between the arbitrability and public order and their relationships evolution trends. Section Two analyzes the application of law of international commercial arbitration and public order, mainly the application of law of international commercial arbitration agreement, international commercial arbitration procedures and substantive law and public order. Section Three analyzes the recognition and enforcement of international commercial arbitral awards and public order, mainly the nature and considered factors of public order and its relationships with other defenses for refusing to recognize and enforcement of foreign arbitral awards in international commercial arbitral awards.Chapter Seven deals with public order in China’s private international law. This chapter reflects the ultimate purpose of the study, divided into four sections. Section One sketches the scholars’attitudes towards the public order. Section Two reviews and briefly comments the development process and status quo of public order in our country’s private international law of legislation. Section Three discusses the invocation of public order in our country’s judicial practice, mainly involving the invocation of public order in the field of application of the law, international civil litigation and international commercial arbitration. Section Four analyzes the problems of public order system in our country, including the objective defects and microscope deficiencies, and a solution to these issues proposed, and on this basis, the terms of public order in our country’s private international law are redevised.