Public policy in private international law : a comparative study

Abstract

The aim of this thesis entitles 'Public Policy in Private International Law - A Comparative Study' is to analyse critically the doctrine of public policy in private international law. In effect, this study is devoted exclusively to an examination of public poicy in relation to the exclusion of rules of foreign law on grounds of public policy in private international law. The doctrine is analysed throughout from a comparative angle, by emphasising the similarities and the differences in the methods of approach of the common law and of the civil law. However while analysis the way the doctrine has been applied under English and French law, account is also to be taken of the role played by public policy in Maltese private international law. Such an analysis is of great interest especially when it is borne in mind that local case law has affirmed on a number of lacuna in Maltese law, the courts are to have recourse to principles of English law (Smith vs Muscate Azzopardi). Indeed, this thesis examines whether in resorting to the doctrine of public policy our courts have applied the concept restrictively as in the practise with English courts or whether there has been a wider application reminiscnet of its application on the continent. So as to carry out correctly a comparative study on any subject, one must have a clear idea of what the work of comparative lawyers consists in. Indeed, views of legal authorities are divided as to the aims of any comparative study. There are two main schools of thought. The first view, as expounded by AEMINJON in Traite de droit Compare (1950), holds that comparative law is a science in its own right. Arminjon opines that the object of such a science is to disentangle and describe the common elements of the judicial systems of modern civilisation. What is required is a scrutiny of all legal systems which unite important human groups as well as those whose study offers interest owing to their originality or their technical value.