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Public Policy and Private Autonomy

 

The relationship between public policy and private autonomy is a multi-faced and multi-layered one. On the one hand, promoting and guaranteeing private autonomy and private actors’ self-regulation is a fundamental interest of society, hence a matter of public policy. On the other hand, not all acts of private autonomy (contracts, testaments etc.) are good for society. A certain degree of limitation of private autonomy is necessary in the public interest.

With the wave of globalization, liberalisation and privatisation that has swept over the Western world over the past decades, more and more sectors of society are to a large extent governed by private parties’ self-regulation or co-regulation. However, private autonomy finds not only a renaissance but also new limits in public or semi-public regulations. The more complex, sophisticated and mobile the human society becomes, the more complex, sophisticated and mobile become also the limitations to private rights and private autonomy imposed by the law in the name of the public interest.

The legal concepts of “public policy” that can be found in statutes and case-law doctrines, have many different functions. One of these is to serve as a gateway for the governance of public interests in private relationships. To fill the vague concept of “public policy” with content is mainly a task of the judiciary. Thus this concept serves as an instrument of judicial governance.


This NILG focus group concentrates on three types of legal concepts of public policy:

1. Public policy exceptions in substantive private and commercial law. The law makes exceptions, in the public interest, from the general rule of validity of acts of private autonomy (contracts, testaments etc.). These acts can be invalid because of contrariety either to a specific mandatory statutory provision, or because of contrariety with an open norm (public policy, good morals, good faith and fair dealing, resonableness etc.). With the term “public policy exceptions”, we mean here only the contrariety with open norms.

2. Public policy exceptions in private international law. These are norms according to which foreign laws cannot be applied, or foreign judgments cannot be recognised and enforced, if the effects of this application, recognition or enforcement are contrary to the public policy (ordre public) of the forum. This focus group deals with this type of public policy exception only for what concerns the regulation of private relationships.

3. Public policy exceptions from the four freedoms in primary EU law. These are derogations to freedom of establishment and freedom of movement of persons, goods and capitals, made for the sake of public policy (in the strict sense), public morality, public safety and public health. This focus group deals with this type of public policy exception only for what concerns the regulation of private relationships.


Comparative analysis

A critical and comparative analysis of the judicial interpretations and applications of these three types of public policy exceptions will form the core of this focus group’s research. Cross-cutting comparisons could be made both between different countries (external comparative law) and between different fields of law (internal comparative law). Particular attention will be paid to three aspects of such interpretations and applications: (a) the governance aspects, (b) the social justice aspects, and (c) the fundamental rights aspects.


Initiators

Initiators of this focusgroup are:

–    Prof. dr. dr. A.L.B. Colombi Ciacchi (University of Groningen)
–    Prof. dr. O.O. Cherednychenko (University of Groningen)
–    Dr. J.W. Rutgers (VU University Amsterdam)
–    Dr. C. Mak (University of Amsterdam)
–    Dr. C.M.D.S. Pavillon (Leiden University)