Category Archives: Public policy
Lukas Rass-Masson, ‘The Impact of European Private International Law and the réserve héréditaire in France’
ABSTRACT Whether the réserve héréditaire (forced heirship under French inheritance law) forms part of French international ordre public, and therefore falls within the public-policy exception, has long been the subject of a major doctrinal debate in France. While the traditional answer was positive, the contemporary evolution of French private international law, driven in particular by […]
Sam Wise, ‘Analyzing the Legal Enforceability of BDSM Contracts between Sex Workers and Clients’
ABSTRACT Contracts are the common legal solution provided to those entering into agreements who wish to decrease their liability. However, there is a limit to which communities can take advantage of these legal protections. As previously taboo sexual practices like BDSM become more popular, those seeking to engage in the practices may think it reasonable […]
Okoli and Emeasoba, ‘The role of English public policy in promoting the circulation of electronic trade documents’
ABSTRACT The Model Law on Electronic Transferable Records (2017) enabled the use and transfer of electronic and digital trade documents across borders. This Model Law influenced the enactment of the 2023 Electronic Trade Documents Act (ETDA) in the United Kingdom, which is a pioneer in this regard. In implementing the Model Law, however, the UK […]
John McCamus, ‘Is Illegality a Defence to Restitutionary Claims?’
ABSTRACT The traditional English jurisprudence granting restitution of benefits conferred under agreements rendered unenforceable because of illegality was unsatisfactory. As a general principle, it held that there was a presumption against restitutionary relief for benefits conferred under such agreements (the Holman principle). This principle was subject to a series of exceptions granting relief to parties […]
Kelvin Hiu Fai Kwok, ‘The Relationship between Statutory Illegality and Common Law Illegality’
ABSTRACT This article discusses the relationship between statutory illegality and common law illegality in contract law. Statutory illegality refers to contracts that are prohibited by legislation, whether expressly or impliedly. Common law illegality, meanwhile, refers to contracts tainted by illegality because their formation, performance, or purpose involves illegal conduct. The former type of ‘illegal contracts’ […]
Baffi and Parisi, ‘The Double Edge of Freedom of Contract’
ABSTRACT Standard economic reasoning suggests that expanding an individual’s choice set cannot reduce welfare because additional options may always be ignored. This intuition underlies the traditional economic justification for freedom of contract. This paper shows that the monotonic relationship between choice and welfare may break down in bargaining environments characterized by asymmetric bilateral monopoly and […]
Rzewuski and Rzewuska, ‘The public policy exception as grounds for refusing to recognize or enforce foreign court judgments in succession cases’
ABSTRACT The number of cross-border civil proceedings is on the rise and is likely to increase in the future. The above also applies to succession law regulating the statutory order of succession. Therefore, national courts adjudicating a succession case have to be familiar with and respect foreign laws indicated by the appropriate conflict-of-law rule. Significant […]
Kwan Yiu Cheng, ‘Invalidating Civil Juristic Acts: Public Order and Good Morals in the Chinese Civil Code’
ABSTRACT This article discusses the concepts of public order and good morals in the Chinese Civil Code. Under Article 153 of the Civil Code, a civil juristic act is rendered void if it violates these concepts. This article examines their substance, functions, and practical significance in determining the invalidity of civil juristic acts in Chinese […]
Greg Bowley, ‘The Public Limits of Private Justice: An Account of the Doctrine of Public Policy in Contract’
ABSTRACT The common law doctrine of public policy remains poorly defined. It has been invoked to produce outcomes distinct from what conventional doctrine would require, but no consensus exists as to the purposes it serves, the factors justifying its intervention, or even the manner of its operation. This paper argues that the best understanding of […]
Jane Thomson, ‘Public Order and Capricious Wills in Quebec: Some Important Lessons for the Rest of Canada’
ABSTRACT Quebec is a leader when it comes to avoiding testamentary conditions that perpetuate discrimination. It has held this a position for over a century, with its public order decisions long pre-dating famous common law cases hailed as firsts in this area of the law. Some might balk at the idea of citing Quebec jurisprudence […]