Chinese Scholarship on Ordre Public
It was in the last days of the crumbling Qing Dynasty (around the turn of the twentieth century) that private international law first assumed the status of an independent science in China.After the Revolution of 1911,research on private international law progressed considerably,with a number of Chinese scholars publishing treatises,some of which touched upon the doctrine of ordre public.For example,in his book entitled,Theory and Practice of Private International Law,Professor Lu Jun analyzes the ordre public reservation rule in the legislation of different countries from the perspective of comparative law and explains rather thoroughly the content and importance of ordre public.30 Generally,the task that scholars during that period undertook was the basic introduction and explanation of the doctrine of ordre public from the perspective of western countries,having failed to shape any systemic theoretical views of their own yet.
Unfortunately,impacted by history the first three decades after the founding of the People’s Republic of China resulted in no academic progress even in the general area of private international law,let alone in the more specialized doctrine of ordre public.It was not until after 1978,when China adopted a new policy of reform and opening up to the world,that the science of private international law assumed a new life.Accordingly,the doctrine of ordre public re-emerged after a long period of eclipse in both its theory and practice.Through efforts made over the ensuing twenty years,Chinese scholars,represented by Professor Han Depei of Wuhan University School of Law,ultimately achieved a better formulated construction of private international law and proposed a fairly comprehensive framework for integrating ordre public into the practicalities of the situation of China,which can be summarized as such:
The most conspicuous characteristic of ordre public is its vagueness and uncertainty,which leads to too much elasticity and flexibility in its application.On the one hand,this allows a court to decline the application of a foreign law,catering to the will and interest of the local ruling class; on the other hand,it opens the door to abuse of the doctrine,which,in the final analysis,ultimately undermines the interest of the state,since individuals have now entered an era of increasing globalization and interdependence.Therefore,it is necessary that the doctrine be kept within proper limits; otherwise,the whole basis of the system of conflict of laws is liable to be frustrated.Specifically,there are several points worth drawing attention to.
First,although the basic spirit and function of the doctrine of ordre public is similar no matter where it is invoked,the way it is conceived in private international law,versus in civil domestic law,must be carefully distinguished.While some rules,when applied in purely domestic legal scenarios,may be mandatory,they are not necessarily so in cases involving a foreign element.For instance,the rules stipulating the minimum legal age for marriage are mandatory in relation to national citizens.However,if a marriage were to take place between a national citizen and a foreign citizen,or between two foreigners,both of whom are below the minimum legal marrying age,in the foreign country the marriage is nonetheless regarded as valid.This is especially so in the event that children have been born as it may be better to recognize the marriage than to upset family relationships by holding that the marriage is invalid and the children illegitimate on the ground of ordre public,because these rules concern the ordre public in the country’s own civil domestic law.(https://www.daowen.com)
As a result,courts should be more scrupulous in applying the doctrine of ordre public when a foreign element is involved than when a purely municipal legal issue is at hand and should not invoke ordre public,save in cases where the application of a foreign law or the enforcement of a foreign judgment would offend some legal,moral,social or economic principle so fundamental to China so as to require its maintenance at all costs and without exception.Otherwise,many reasonable relationships valid under their governing foreign law would be nullified,negatively affecting civil international exchanges which should otherwise be encouraged.In summary,the conception of ordre public in private international law is,and should be,narrower and more limited than in civil domestic law.
Second,recourse to the ordre public reservation should be done in a manner that does not violate the sovereignty of foreign countries.Refusal by the courts of western countries to recognize foreign nationalization laws on the ground of ordre public may be regarded as a failure to give due recognition to the sovereignty of foreign countries.It is widely accepted in international law both that sovereignty is the inherent supreme authority that a state possesses over all affairs and components within its territory and that every sovereign state is bound to respect the independence of every other sovereign state.As long as the conduct of a state does not violate international law,it should remain free from external interference and should be respected by other countries.Hence,refusing to recognize foreign nationalization laws on the ground of ordre public is inconsistent with the principle of sovereignty,thus constituting an abuse of the doctrine.
Third,recourse to the ordre public reservation should be distinguished from exclusion of the public law of a foreign state.It is a well-established and almost universal principle that the courts of one country will not enforce the public laws of another country.31 The rationale behind this principle is that the imposition of public law reflects the exercise by a state of its sovereign power,and it has firmly been established that such an act of sovereignty can have no effect within the territorial borders of another state.Thus,the exclusion of the public law of a foreign state is entirely a manifestation of the principle of sovereignty and can by no means be lumped together with the ordre public reservation.
Last,a court should not necessarily apply the lex fori once a foreign law has been excluded on the ground of ordre public.In the past,the prevalent theory was that the lex fori must always be applied in cases in which the foreign law was excluded.This theory has now been challenged,some scholars arguing that if the conflict rules of the forum refer to a foreign law,it means that the foreign law has a more significant relationship with the litigants or the cause of action.Therefore,if such a foreign law is disregarded,judges should not apply the lex fori automatically.Instead,they should perhaps first take into consideration any other foreign law that has a more significant relationship with the litigants or the cause of action.Other scholars argue for complete dismissal of the action under such circumstances,insofar as no other law could possibly substitute for the foreign law excluded.Still other scholars reason that judges may exercise discretion in dealing with this issue,depending on the specific context of each case.