Public policy and human rights

Abstract

The article examines the impact of human rights on the application of public policy clauses in private international law, a topic which is of increasing significance in a “global village” with fragmented human rights standards. It argues that public policy clauses should not be applied restrictively insofar as they serve to protect human rights. Instead, the principle of proportionality and the merely indirect horizontal effect of human rights in private law relationships prevent the use of substantive public policy as a “floodgate” to impose domestic values on foreign cases. Furthermore, the study shows that the human rights-compliant application of public policy clauses is subject to full scrutiny by the European Court of Human Rights, except in cases where domestic courts do not refuse recognition of a foreign judgment based on public policy for judgments originating from another European Convention on Human Rights state. The article contributes to the theoretical and doctrinal analysis of public policy as a private international law concept.