Private Law Theory

ABSTRACT
To the surprise of many foreign readers, the American version of the public policy reservation (ordre public) is phrased exclusively in terms of jurisdiction and access to courts rather than as an exception to choice of law. At least in its ‘official’ iteration in the First and Second Restatements, the exception allows courts to refuse to entertain a foreign cause of action that offends the forum’s public policy rather than to refuse to apply an offensive foreign law provision while adjudicating a (foreign or domestic) cause of action. This essay discusses the historical origins of this narrow and rather unique formulation, the problems it creates, its tacit rejection by most American courts, and the new flexible formulation of the exception in the proposed Third Conflicts Restatement.

Symeonides, Symeon, The Public Policy Exception in Choice of Law: The American Version (April 6, 2025).