On the Application of Public Order Reservation in the Application of Law

Abstract

The mainstream academic view in mainland China adopts the Effects Doctrine as the standard for applying the public order reservation. However, there has been little discussion on how to reasonably apply the Effects Doctrine in judicial practice. The separate application of the two primary modern western public order reservation theories — “Structured Public Order Theory” and “Doctrine of the Close Connection with Public Order” — each has its shortcomings. However, while adhering to the Effects Doctrine, drawing upon the distinction of structured concepts from Structured Public Order Theory and case-specific connection approach under the Doctrine of the Close Connection with Public Order can facilitate its reasonable application in judicial practice. Furthermore, when employing the public order reservation to exclude laws from Hong Kong, Macao, and Taiwan, mainland courts should also be guided by the principle of minimum harm.