Public Policy and Public Interest in International Law and EU Law
pages 117 - 147
ABSTRACT:

Whereas civil law conceives the principles of ordre public as forming the pillars of legal and social order, forming a long-term constant, public policy according to the common-law understanding of the term belongs to a markedly broader legislative category. In this respect public interest and public policy, as categories, are much closer to one another than is the case in civil law systems. Even so, they remain separate categories. However, the increasing tendency to make one’s case by taking recourse in public interest and by conflating public interest with public policy (ordre public) (often owed to terminological inaccuracies) is alarming, as it leads to a broadening of the public policy defence, and increased application of the public policy objection, which is at odds with the interests of the international community. Public interest is not an indeterminate legal term. It represents an abstract term that can only be identified against the backdrop of specific legal rules (laws, standards). Its subject are persons who form a loosely defined, but essentially identifiable circle, and it is usually expressed in [absolute] mandatory rules (which in private international law customarily take the character of what is known as overriding mandatory rules). In contrast to the negative operation of public policy, mandatory rules operate as positive rules. However, it is only in exceptional cases that the concern for the public interest is thought to be so pervasive as to be qualified as public policy and to be protected by qualified legal means. In contrast to the [absolute] overriding mandatory rules, public policy does not require identification of the public interest and its specific subject, or vehicle.

keywords
civil law
Common law
natural person
overriding mandatory rule
infrastructure
mandatory rule
international law
private international law
public international law
international public policy
treaty
indirect expropriation
working conditions
political interest
state under the rule of law
legal entity
EU law
dierect expropriation
private interest
social order
social interest
operativeness of a treaty
authority of the state
public policy (ordre public)
public interest
common good
expropriation
fundament al value
fundamental right
fundamental freedom
about the authors

Univ. Professor, Dr.iur., Mgr., Dipl. Ing. oec/MB, Dr.h.c. Lawyer admitted and practising in Prague/CZE (Branch N.J./US), Senior Partner of the Law Offices Bělohlávek, Dept. of Law, Faculty of Economics, Ostrava, CZE, Dept. of Int. and European Law, Faculty of Law, Masaryk University, Brno, CZE (visiting), Chairman of the Commission on Arbitration ICC National Committee CZE, Arbitrator in Prague, Vienna, Kiev etc. Member of ASA, DIS, Austrian Arb. Association. The President of the WJA – the World Jurist Association, Washington D.C./USA.

e-mail: office@ablegal.cz