Evaluating public policy exception in personal status matters: A critical study in the context of regulation and law

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Abstract

The amendments to United Arab Emirates (UAE) Federal Law No. 30 of 2020 altered Article 27 of the Civil Transactions Law to avoid excluding the application of foreign laws when these oppose Islamic law and public policy (Dubai Court of Cassation, Civil Chamber, Case No. 592/2023, 2024). This paper addresses the answer to a question related to the extent of the success of the Emirati legislator in achieving a balance between the supposed role of public policy exception and protecting the foundations, values, and principles of Emirati society when considering cases that contain a foreign element. To answer this question, we followed the analytical approach, where we analyzed the aforementioned legal amendments. In this paper, it is argued that these amendments contradict the role of public policy on issues of private international law. Alternative solutions are suggested which, while not entirely removing the concept of public policy, encourage a reduction in the applicability of the public policy. With these solutions, the judge would have the power to rely upon public policy when a minimum threshold is present in the judge’s home nation, or through the application of the principle of proportionality between the provisions of foreign law and fundamental human rights (Al-Qudah, 2023).

Keywords: Public Policy, Emirati Law, Personal Status, Foreign Law, Islamic Law, Private International Law, Federal Civil Personal Status for Non-Muslim Foreigners, Federal Civil Law

Authors’ individual contribution: Conceptualization — F.A. and M.E.K.; Methodology — N.A. and S.E.K.; Resources — F.A., N.A., M.E.K., and S.E.K.; Writing — Original Draft — F.A., N.A., and M.E.K.; Writing — Review & Editing — F.A. and M.E.K.; Supervision — M.E.K. and S.E.K.; Project Administration — M.E.K.

Declaration of conflicting interests: The Authors declare that there is no conflict of interest.

JEL Classification: K15, K36, K41

Received: 27.12.2023
Accepted: 29.11.2024
Published online: 03.12.2024

How to cite this paper: Alnusair, F., Alhajaya, N., Kandeel, M. E., & Kandil, S. E. (2024). Evaluating public policy exception in personal status matters: A critical study in the context of regulation and law [Special issue]. Journal of Governance & Regulation, 13(4), 257–265. https://doi.org/10.22495/jgrv13i4siart4