Public Order Reservation System

As an ancient doctrine in the conflict of laws, the purpose for reservation of public order is to exclude a foreign law if its application would violet some basic legal principles or concept of good morals in the forum and essentially protect the fundamental interests of the home country. So far the attempt to define the doctrine precisely has never succeeded. Public order itself is a flexible definition and the judges are endowed with extensive discretions. This doctrine is issued in the legislations of many countries all over the world, but the expressions are quite different. All of the above will cause the abuse of this doctrine, and accordingly detract from the value of private international law in coordinating legal conflicts. To restrict the application of reservation of public order is the common demand of international community. Although China has consistently adopted an affirmative attitude towards the application of reservation of public order, there are a lot of problems to be completed in legislation and judicial practice.Using the objection to recognize ICC arbitral award with public order reason case as a cut-in point, through the research of basic conceptions and theoretical development of reservation of public order, a generalization of the legislation and judicial practice of this doctrine in different countries is made. To the defects faced in our country's judicial practice, some suggestions are proposed. Finally, the case involved in the introduction is discussed on the basic theory of public order.This thesis consists of four chapters.Chapter one is the discussion of elementary problems of public order, including the discrimination of interrelated conceptions, the function, the classification and the applicable standard of public order.Chapter two emphasizes the theoretical development process of reservation of public order, from the infancy to clear demonstration, and then the further development. The process indicates that this doctrine is kept close to its historical background.Chapter three is the investigation of reservation of public order in different country's legislation and judicial process. By the enumeration of its different legislative modes and contents in the world and the analysis of its application and the law applied after excluding a foreign law, the practice to restrict this doctrine as an international trend is pointed out.Chapter four is about the reservation of public order in our country's legislation andjudicial practice. Some suggestions are put forward after the statement of the defects,especially on the complicated interregional conflict of laws. In this chapter, there isthe investigation of the objection to recognize ICC arbitral award with public orderreason case. Starting with the basic knowledge of international commercialarbitration, the reasons for the objection is analyzed.Although reservation of public order is adopted by most countries in the world, it isapplied with prudent attitudes. To make the application of this doctrine as "safetyvalve" and avoid the role of the barrier to legal access is the goal for the wholediscussion of this thesis.