Public policy in private international law : a concept in evolution

Abstract

This thesis attempts to conduct a legal analytical approach to the concept of public policy in private international law whilst foregrounding its relationship to time. In many ways public policy can be shown to be a concept in evolution. It is first of all a notion whose theoretical underpinning, particularly the understanding of its nature and function within the private international law system, has gone through many stages of development over the centuries. Particularly when it comes to distinguishing the mechanism of public policy from other related notions, time has wrought a valuable process of clarification. Secondly, time is also a determining factor in the concrete application of the public policy defence. This is so both with respect to the potential for change which is inherent in the content of public policy and with respect to the resultant problem of which public policy ought to be applied when that change occurs between the time the facts in issue arise and the time the Court comes to decide the matter. A third and very important light under which to consider the public policy device in its evolutionary aspect is from the point of view of the developments wrought through European Union activity and its drive for the harmonisation of private international law. This involves among other things a re-examination of the issue as to which actors actually determine the public policy of the Member States of the European Union, Malta being one of them. The principal focus in this respect will be the public policy defence as found in the Brussels I and Ilbis Regulations. Lastly, the relationship between public policy and time will be studied from a Maltese law point of view, taking into consideration instances where Maltese public policy has changed over time and instances where the content of Maltese public policy is still uncertain. Recent developments in Maltese law have also opened up the possibility, at least in certain areas of the law, of distinguishing clearly between public policy and lois de police.