1. Dicey, and Morris, , The Conflict of Laws 9th. ed. (1973) p. 72Google Scholar. Cf., Batiffol, , Dip., Vol. 1, 6th ed. (1974) p. 459Google Scholar (“effet atténué de l'ordre public”), and Kegel, , IPR 4th. ed. (1977) p. 239Google Scholar, (“Eine Inlandsberührung ist nötig”). Kahn-Freund, O., “Reflections on public policy in the English Conflict of Laws”, 39 Transactions Grotius Society (1953) p. 43 and 58.Google Scholar

2. Lagarde, P., Recherches sur l'ordre public en d.i.p. (1959) pp. 7–8.Google Scholar

3. Cour de Cassation 28 January 1958, Rev.Crit. 1958, 110; Clunet, 1958, 776.Google Scholar

4. Bamgbose, v. Daniel, [1955] AC 107Google Scholar, on appeal from the West African Court of Appeal.

5. d'Oliveira, H.U. Jessurun, “Openbare orde en rechtsvergelijking”, in 't Exempel dwinght (essays in honour of I. Kisch) (1975) p. 239Google Scholar. See also, particularly on polygamy, Wiarda, J.'s contribution, p. 389 at p. 401Google Scholar, where a long list of authors is given contra celebration of polygamous marriages in the Netherlands; pro only one author (Veegens, J.D. (1898))Google Scholar and a moot trial decision by Groningen University Students (1974). van Rooij, R., De positie van publiekrechtelijke regels op het terrein van het ipr (1976) p. 267Google Scholar, only sees practical, organizational problems.

6. Bartin, , Principles vol. 1 (1930) p. 268Google Scholar. Cf., Van Hecke, 's note to Cour de Liège 23 04 1970Google Scholar Rev.crit.de jur. belge (1971) p. 5: “le second mariage valablement conclu à l'étranger doit êtie considéré comme un donné”. The case was about a traffic accident in which the husband was killed. The Court of Appeal, contrary to the court below, allowed the action of the second wife also, for a “considération particulière d'équité privée” (also in Clunet, 1971, 865Google Scholar; Rev.Crit. 1975, 54 note Graulich).

7. Kosters, J., Het internationaal burgerlijk recht in Nederland (1917) p. 152Google Scholar. Citations from Dutch sources are given in our translation.

8. These international instruments, their precise meaning and binding force, will not be discussed here. In private international law, domestic courts may adopt as part of their “public policy” rules which have, in public international law, so far only the status of ideals (“standards of achievement”).

9. Of course there is a general (but not unlimited) moral duty to obey the law. But it makes a great difference whether it is good to do something because the law so commands, or whether the law commands something because it is good. The latter one might be obliged to do even if the law is silent. This is above all important in relation to the doctrine of public policy, “le pouvoir judiciaire gardien d'une forme supérieure de légalité qu'on ne saurait inscrire dans les textes” (Rigaux, , D.i.p. Vol. I (1977) p. 358).Google Scholar

10. District Court of Amsterdam 8 03 1920Google Scholar, Ned. Jur. 1921 279, in relation to a smuggling agreement. Cf., Louis-Lucas, P., Rev.Crit. 1966, 272Google Scholar: “l'ordre public général dont l'autorité ne connait pas de frontières”.

11. Arts. 327 and 338 Dutch CC (later: 343. Abolished 1970), 331 and 335 French CC (abolished 1972).

12. As to divorce, Cour de Cassation 3 April 1935 S. 1935.1.230. As to legitimation, Cour de Cassation 3 June 1966, Rev. Crit. 1968, 64, Clunet, 1967, 614Google Scholar; District Court of Alkmaar 21 10 1964Google Scholar, Het Personeel Statuut 1965, 89.Google Scholar

13. As to divorce, Cour de Cassation 17 April 1953, Rev.Crit. 1953, 412, Clunet, 1953, 860Google Scholar. See the survey of French case law as from the codification, especially on divorce and paternity actions, in Lagarde, P., op.cit, pp. 13–31Google Scholar. As to legitimation, Cour de Cassation 22 May 1957, Rev.Crit 1957, 466; Raad, Hoge 21 03 1947Google Scholar, NJ 1947, 382; D.C. Curaçao 24 April 1968, Ant. J.B. 1968, 162.

14. Lagarde, , op.cit., pp. 47–48.Google Scholar

15. There is a difference, although subtle, from the polygamous marriage celebrated abroad, where the recognition of the second wife's right of maintenance and her children's rights of succession is justified by her giving in good faith a sort of consideration. Compare the institution of the mariage putatif. This aspect is absent in legitimation. Cf., Lagarde, op.cit., p. 80 on a non-recognized foreign adoption in relation to succession: “Le resultat n'a rien qui puisse choquer”. This is the right place to mention Lagarde's more or less technical explanation of the different effects of public policy: public policy exceptionally prevents the application of the foreign law designated by the conflict rule of the forum. However, with relationships created abroad one is mostly concerned with a preliminary question (Vorfrage), governed by the foreign law designated by the conflict rule of the country whose law governs the principal question. Thus, public policy does not enter into the picture. The forum is then disinterested (77), not concerned (81). This explanation, beyond turning on a debatable doctrine on incidental questions, seems to restate the relativity of public policy without reaily justifying it. But I do not pretend to do justice to Lagarde's interesting and ingenious developments: that would not be possible within the scope of this article. For a lengthy discussion, see Meise, H., Zur Relativität der Vorbehaltsklausel, (1966) p. 179 et seq.Google Scholar

16. Indeed in Dutch law, before the act of 10 July 1947 S. H232 an adulterine child got nothing. It was only granted a right of alimony: Art. 914 Dutch CC, borrowed from Art. 762 French CC. Between 1947 and 1970 it was in the same position as other illegitimate children.

17. HR 21 03 1947, NJ 1947, 382.Google Scholar

18. Art. 89 Dutch CC (abolished 1970), Art. 298 French CC (abolished 1904). Art. 89 was applied to foreigners on grounds of public policy by HR 2 June 1936, NJ 1936, 1013.

19. Cf., Mayer, P., Droit international privé (1977) p. 164.Google Scholar

20. Some authors mention “legislative policies” as a separate head of public policy, e.g., Mayer, , loc.cit., p. 162Google Scholar, Rigaux, , loc.cit., p. 358Google Scholar. A peculiar consequence of this approach is that with each statutory change of some importance the very foundations of society are supposed to be volcanically shaken. Questions of intertemporal law in relation to a sudden change in the content of the “public policy” of the forum have seriously been contemplated. In fact, statutory changes often bring the law into agreement with already existing practice and/or public opinion. Cf., against a similar trend in English p.i.l.: Kahn-Freund, loc.cit.

21. E.g., in the English Divorce Reform Act 1969, s. 2(2): “It shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent”. See also Art. 158 of the Swiss Civil Code of 1907. The States of Gelderland, a Dutch Province, promulgated in 1713 an edict which made malicious desertion severely punishable, and allowed the deserted party to remarry only 7 years after the desertion, expressly considering that in many cases there was “suspicion of collusion” (van Apeldoorn, L.J., Geschiedenis v.h. Ned. huwelijksrecht, 1925, 187).Google Scholar

22. For France, see Chesné, G., Le divorce par consentement mutuel, Dalloz (1963) Chron. 95Google Scholar. In the Netherlands, although until 1971 divorce by mutual consent was expressly forbidden by Art. 263 (later 160) CC, is was general practice, since the HR 22 June 1883 W 4924 decided that in undefended actions the alleged adultery needs no further evidence.

23. Kollewijn, R.D., in Liber Amicorum François, NTIR (1959) p. 177Google Scholar. He added that in Dutch law the dilemma did not arise. At that time, the whole Dutch law on matrimonial causes was still d'ordre public positif according to Hoge Raad 13 December 1907 W. 8636, so that any foreigner could avail himself of the procedural secret route of HR 1883. This result was probably not intended by the decision of 1907, given the comment 10 years later by Kosters (judge in the Hoge Raad): “It would be contrary to our public policy if we were to admit in our society divorces between foreigners for instance by mutual consent (…) whereas it is refused to the natives for pedagogic and moral reasons” (sic, loc.cit., p. 477).Google Scholar

24. Paul Scholten, note to NJ 1936, 1013, and Asser-Scholten-Wiarda, , Familierecht 8th ed. (1947) p. 51Google Scholar. The rule was disapproved. See remarks by Rutgers, and Muller, , NJB (1957) pp. 765 and 724Google Scholar. The term “co-respondent” stands for accomplice to the adultery. In continental law, this person is not a party to the divorce proceedings but may be called as a witness.

25. It is not surprising that such rules have on occasion been held contrary to public policy. See Lloyd, D., Public Policy (1953) p. 93Google Scholar; Batiffol, , op.cit., Vol. II p. 112Google Scholar n. 104 p. 77, n. 70.

26. In France, divorce by mutual consent was expressly introduced (1975). In the Netherlands, breakdown became the only ground for divorce (1971). From the wording of Arts. 152 and 154 CC it may be indirectly inferred that the parties can obtain a divorce by mutual consent, viz., by alleging and not contesting breakdown. As mentioned above, the same has been possible since 1883 by alleging and not contesting adultery. Nothing changed, in fact, except that the express prohibition of Art. 263 CC was deleted. This deletion did not prevent the District Court of Rotterdam 21 March 1977 NJ 595 from seriously raising the question whether an action for divorce by mutual consent, based on Portuguese law, was contrary to Dutch public policy. Fortunately it was not, in casu, because “it appeared from the allegations of the parties that the mutual consent was based on their opinion that the marriage had broken down”. The official morality is tenacious.

27. Raad, Hoge 13 03 1936, NJ 1936, 280Google Scholar (N.V. Koninklijke) and 13 March 1936, NJ 1936, 281 (N.V. Bataafsche). See Rev.Crit. 1936, 733.

28. Cf., d'Oliveira, H.U. Jessurun, loc.cit., pp. 241–243Google Scholar; Strikwerda, L., Semipubliekrecht in het conflictenrecht (1978) pp. 19–24.Google Scholar

29. Cf., Ehrenzweig, A.A., Private International law, General Part (1967) p. 156 et seq.Google Scholar, and vol. III (1977) p. 40, and authors there cited. Van Rooij, , loc.cit., pp. 235–251Google Scholar gives a useful survey of continental literature.

30. Van Rooij, , loc.cit., pp. 138, 249Google Scholar, thinks a casuistic weighing of interests necessary, and observes that the impact of a national economic regulation should be limited to the consequences which the contract in question has within the territory of the legislating state.

31. Lemaire, W.L.G., Nederlands internationaal privaatrecht (Hoofdlijnen 1968) pp. 405Google Scholar. Cf., Neuhaus, , Die Grundbegriffe des IPR, 2nd ed. (1976) p. 367.Google Scholar

32. NVIR, Mededelingen no. 63, 02 1971, 72.Google Scholar

33. HR 16 11 1956, NJ 1957 1Google Scholar, RabelsZ, . 1959 314Google Scholar. See on this case Kollewijn, , Tien Jaren pp. 376, 382Google Scholar; Deelen, , Rechtskeuze in het Ned. internat. contractenrecht (1965) p. 187Google Scholar; Strikwerda, L., loc.cit., p. 44 and further authors there mentioned.Google Scholar

34. [1950] AC 327, 341. See, on the moral aspect of this case, Picarda in the discussion of Kahn-Freund, 's lecture, loc.cit., p. 76Google Scholar, and Kahn-Freund, 's answer p. 82Google Scholar; and Radcliffe, Lord in the judgment itself, p. 337Google Scholar (“sympathy”, “distaste”). The case was about FF 960,000 borrowed in 1944 in Monaco by Weil, in order to try to purchase for her son, a Jew, exemption from being deported to Germany. The sum was held irrecoverable, the transaction being a borrowing of foreign currency contrary to Reg. 2 of the English Defence Finance Regulations of 1939.

35. Cf., d'Oliveira, H.U. Jessuiun, “Internationaal overeenkomstenrecht”, NVIR, Mededelingen no. 71 (04 1975) pp. 120–122Google Scholar. Deelen speaks of “a comity idea, although a materialistic one”. Cf., Holder, W.E., “Public policy and national preferences”, 17 ICLQ (1968) p. 926 at p. 940CrossRefGoogle Scholar. At length on this idea Van Rooij, , loc.cit., pp. 177–188.Google Scholar

36. “Exchange contracts which involve the currency of any member and which are contrary to the exchange control regulations of that member maintained or imposed consistently with this Agreement shall be unenforceable in the territories of any member”. Kollewijn, loc. cit., observed that this rule had been overlooked in De Vries v. Van Kroon. “Any inquiry into violation of Dutch public policy or good morals was superfluous”. Cf., Cour d'appel d'Aixen-Provence 15 December 1966, Rev.Crit. 1970 465, note Drakidis.

37. 99 F.Supp. 602, mentioned by Ehrenzweig, , P.i.l. General Part. (1967) p. 166.Google Scholar

38. HR 17 04 1964Google Scholar, NJ 1965, 22Google Scholar; NTIR 1966, 58Google Scholar; Clunet, 1969 978 (Escomptobank).Google Scholar

39. Cour de cassation 5 March 1928, Rev. de d.i.p. 1929 288: “Une des bases fondamentales de nos institutions sociales”. Nowadays there is no communis opinio on the point of compensation as to foreign property. A French court requested expert evidence on the fairness of the illusory compensation for nationalization of the Chilean copper mines (deduction of excessive profits made in the preceding period): Trib. de Paris, référé, 29 11 1972Google Scholar, Clunet, 1973, 227, note Kahn.Google Scholar

40. Cf., Russell, B., Political Ideals (1917) 1963, 44.Google Scholar

41. Mc. Nair, NTIR 1959, 218, 243. Cf., Starke, J.G., Introduction to International Law, 1977 8th, 326.Google Scholar

42. Cf., Seidl-Hohenveldern, , AJIL (1975) p. 110Google Scholar, criticizing on that point Landesgericht Hamburg 22 January 1973, RIW/AWD 1973, 163, Deutsche Rechtsprechung IPR 1973, 300. See also Seidl, H., “Internationales Enteignungsiecht”, in Festschrift Kegel (1977) p. 265 at p. 279 et seq.Google Scholar, where, however, international conventions are prayed in aid. Lagarde, loc.cit., p. 69.

43. Figueres, J., “Some economic foundations of human rights”Google Scholar, in Brownlie, , Basic documents on human rights, (1971) p. 495Google Scholar, deals with minimum wages legislation under the heading “Slave labour”.

44. Figueres, , loc.cit, p. 501Google Scholar writes that in the US low wages for foreign workers are prohibited “not only by the power of the trade unions, but also by the moral sense of the nation, expressed in its legislation. It would be contrary to the economic and social rights of man”.

45. See Audit, B., La fraude à la loi (1974) p. 85.Google Scholar

46. HR 15 01 1960Google Scholar, NJ 1960, 84, the Panhonlibco case.

47. Pres. D.C. Rotterdam 24 10 1972, NJ 1972, 457Google Scholar; published in the BW Krant (of Leiden University) 12 1972, 20Google Scholar with summaries of the pleadings. An important reason for granting the injunction was that s. 495 of the Commercial Code requires attached cargo to be stored ashore.

48. This Resolution is “declaratory of existing customary law”, according to Dupuy's award of 19 January 1977, reported by Bowett, in 27 C L J (1978) p. 5Google Scholar; also in Clunet, 1977, 350Google Scholar with comment by Lalive, J.F. at p. 319Google Scholar. On that award also Rigaux, , Rev.Crit. (1978) p. 435.Google Scholar

49. Pres. D.C. Amsterdam 30 11 1978Google Scholar (so far only published in BW Krant 04 1979, 20).Google Scholar

50. The trade unions argued in these proceedings that the ITF wages should be considered as an absolute minimum. The Dutch minimum wages are considerably higher, e.g., for an ordinary seaman $ 841, an amount which is appropriate, according to ITF scales, for the rank of qualified officers and chief stewards. The owner for his part maintained that the situation of the crew was not alarming if contrasted with their “national background”. What this means is made clear by a letter from the owner dated 26 January 1978 answering a complaint by the crew on the food situation on board: “A lot of the items that you call for, are absolutely unreasonable, considering the make up of the crew of about 90% Filipino and Korean, They are already been fed about 500% better if not more, than what is their normal diet at home. Should they remain on board for a long time and then go back home, and back to their normal diet, they would be very frustrated and unhappy”.

51. Cf., Lyon-Caen, A., “La grève en d.i.p.”, Rev.Crit. (1977) p. 271, at p. 288Google Scholar: “Une loi étrangère selon laquelle la grève entraînerait la rupture des contrats de travail (…) serait evincée au nom de l'ordre public” (noot V.).

52. Rood, M.G., Naar een stakingswet? (1978) p. 83Google Scholar sustains the “professional” character of such actions. Rood was counsel for the trade unions in the Birte Oldendorff case.

53. The Court of Appeal of The Hague in the Panhonlibco case stated that actions started in favour of others are of a higher moral level than actions to better oneself.

54. The judgment in the Tropwind case mentions that approximately 8000 ships fly a flag of convenience, of which some 1500 have accepted the ITF Collective Agreement.

55. In Dutch law, it has so far only been used in some adoption custody and guardianship cases.

56. Raad, Hoge 12 12 1947Google Scholar, NJ 1948, 608. Court of Appeal of Brussels 24 January 1964, Pasicr. 1965 II 15.Google Scholar

57. Pres. D.C. Rotterdam 18 10 1972Google Scholar, NJ 1972, 456, BW Krant, loc.cit, 30.

58. Leeuwarden, D.C. 18 11 1976Google Scholar Asset Inst. card nr. 10523; Verheul, J.P., Aspecten van Ned. int. beslagrecht (1968) p. 109Google Scholar. This kind of attachment is called “revindicatory” (roughly, replevin).

59. Cf., the German decision on the merits in a similar case, mentioned in n. 42.

60. O'Connell, , International Law Vol. 2, 2nd ed. (1970) pp. 615, 619, 626.Google Scholar

61. François, , Grondlijnen van het volkenrecht, 3rd ed. (1967) p. 281.Google Scholar

62. Adriaanse, P., Confiscation in p.i.l. (1956) p. 39.Google Scholar

63. Cf., Seidl-Hohenveldern, , Festschrift Kegel (1977) p. 274Google Scholar, in an other context: “Die Vorstellung des Bestehens gerichtsfreier Hoheitsakte ist der Rechtswelt des Grundgesetzes fremd”