Analysis On Reservation Of Public Order

Reservation of public order is one of the oldest among rules of conflicts, which plays an important role in restricting and excluding the adaptation of foreign laws. Nowadays, all nations adapt this system in the Private International Law to maintain stability of national law and public interests. Since there is no universal criterion internationally, it deserves most disputes. This paper starting from the origin and development of reservation of public order, introduces the relative theories of public order, and presents the practices of reservation of public order from legislative and judicial perspectives. Further more, I put forward my own understanding on the connotation and extension of the public order, make a forecast on reservation of public order and I hope to contribute my own effort to the adaptation of reservation of public order.The paper consists of three parts, illustrating on overview of reservation of public order, theories and practices on reservation of public order and giving my own understanding on public order respectively. The third part is my point of view on the connotation and extension of public order and my forecast on reservation of public order.Reservation of public order as a system of excluding adaptation of foreign laws in Private International Law, can be traced back to the times of the theory of statuta. Italian"father of Private International Law"Bartolus goes for this system when he established"the theory of statuta". Later on, Holland scholar Huber illustrated on this theory when he established"Comitas Gentium". The reservation of public order shows up as law when it appears on French corpus of civil law. Generally speaking, reservation of public order refers to a reserving system when according to one nation's conflict norm the court should apply foreign laws, but the application of foreign laws will clash with vital interests, major policies, fundamental principles of law or moral standards of the nation where the court in, then the court could not apply foreign laws as a result. However, reservation of public order has the characteristics such as its vague implication, great flexibility and elasticity in application, so we could not simply take"more directly and thoroughly excluding the adaptation of foreign law"as its existing meaning and function, but we should consider the importance of its connotation and extension in addition.Reservation of public order receives the general affirmation of theories and practices from various nations. When it comes to what is public order, and under what circumstances it can be applied, the opinions are diversified. However either Civil law school or Common law school approves of the reservation of public order when handling the law application of the foreign-related civil cases. In rules of conflicts, it is accepted and widely applied to take public order as a foundation of law to exclude the adaptation of foreign law. The legislative title of the public order is diversified and differentiated, but the mode of legislation can fall into three accounts, those are indirect restriction, direct restriction and incorporate restriction. And there are two claims on the criteria of public order excluding the foreign law, namely, theory of subjectiveness and theory of objectiveness. The theory of result in theory of objectiveness is a feasible one. It can not only maintain the public order in the court nation, but is also beneficial to the just and reasonable case resolving, so it is adopted by many nations. However, the judicial practices are diversified in different nations, even within one nation, practices of courts could not concord with each other. As a result, any nation on public order legislation could neither ignore the difference between the national fundamental social orders and the law, damaging the national sovereignty, nor let the public order lose its bound, denying the existed relationship between civil and commercial affairs. Thus it is more important to define the connotation and extension of public order.As a conclusion, although we are aware of the vagueness and uncertainty of public order, under what circumstances the nations use public order changes when time, problem involved and other conditions are taken into consideration. But it does not obstruct us to define public order generally. Firstly, looking at the word"public order", we can get it refers to universally existing order in international society, a certain country or region that is socially fundamental, relatively stable and hard to alter. It includes political order, economic order, cultural order and social ethic order, etc. These all shows the"fundamentality"of public order. From this perspective, I think that there are two applicable occasions for public order, when the national or international public order is harmed. National public order includes national sovereignty and security, the concept of liberty, equality, human rights, justice, social ethic cords of a nation, and the national fundamental laws or else to say the constitution and the principles in other department laws. International public order includes the basic principles in law of nations, and international relationship order between one nation and its foreign countries. Meanwhile the understanding of public order could not linger on the surface. In another word, not all the behaviors that are harmful to national interest are negative according to reservation of public order. The analysis of the legislation of Holland and Australia shows the ultimate trend of public order's connotation, and it is decided by its fundamentality. The maintenance of national sovereignty is one of the foundations for the reservation of public order. Nowadays, the national sovereignty principle is undergoing the historical change from"absolute sovereignty"to"the relative absolute sovereignty". As the multinational corporations develop fast and affect a nation's political and economic interest, the inland region that is dominated by the country alone is smaller and smaller, in most cases, the nation has to share its sovereignty with other nations and international organizations. As the conception of national sovereignty become infirm, it leads to the change in the extension of reservation of public order, namely, the possibility of unification of public order extension and the reaching of reservation of public order to public law.