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Common Law Origins SUBSTANTIVE PUBLIC POLICY IN CROSS-BORDER LITIGATION: A COMMON LAW STUDY A Thesis submitted by Sarah McKibbin, LLB (Hons I) For the award of Doctor of Philosophy 2019 ABSTRACT This thesis examines the evolution of the substantive public policy exclusion in the cross- border litigation of major Anglo-common law jurisdictions. The substantive doctrine of public policy in its domestic and cross-border spheres of operation has long courted criticism for its uncertainty, ambiguity, and unruliness. As a means by which to exclude foreign law or deny recognition to a foreign judgment, cross- border public policy ultimately involves a moral evaluation of foreign law. This thesis sets out to deepen existing scholarly understanding of the historical and theoretical development of the substantive exception in cross-border litigation in Anglo-common law jurisdictions. In addition, it aims to rehabilitate the reputation of substantive public policy, which is still occasionally characterised as an ‘unruly horse’ in need of taming. It fulfils this aim by examining substantive public policy’s modern content in the jurisprudence of major Anglo-common law jurisdictions and recommending two new species of exception: public international law and foreign governmental interests. CERTIFICATION OF THESIS This Thesis is entirely the work of SARAH LOUISE MCKIBBIN except where otherwise acknowledged. The work is original and has not previously been submitted for any other award, except where acknowledged. ___________ Date PROFESSOR REID MORTENSEN Principal Supervisor Student and supervisor’s signatures of endorsement are held at the University. ACKNOWLEDGEMENTS I have been incredibly fortunate to receive the help and support of many people throughout my candidature. To these people, I owe my deepest thanks. Special mention is due to my principal supervisor, Professor Reid Mortensen. I greatly valued his generosity of time as well as the degree of care he took when reading through and commenting on my drafts. This thesis would have been all the poorer were it not for this feedback. Most especially, I wish to thank him for his encouragement, patience, and faith in me. My colleagues in the School of Law and Justice at the University of Southern Queensland have provided me with a highly congenial working environment in which to complete this thesis. Our morning teas and lunches have, quite literally, given me food for thought. Thanks especially to Dr Suzanne Reich for our two (or should that be three?) productive writing retreats and for my ‘PhD Home Straight Nutrition/Survival Pack’. Thanks to Dr Katie Murray for checking up on me, even on maternity leave! I also wish to thank my undergraduate and graduate students at USQ for keeping me on my toes. I am grateful to USQ for providing me with financial and library support. Financially, I have been supported by an Australian Postgraduate Award (2015–17). USQ’s interlibrary loans service has been a godsend. Final thanks go to my family for their unstinting love and support. I might have given up years ago without their support. Thanks to Ron McKinnon (Gramps); my stepdad, Terry Pannell; and my two sisters, Katie Brooks and Barbara Ford. Most especially, I thank my wonderful mum, Sue; my two brothers, James and Matt McKibbin; and my sister-in-law, Renita. This thesis is dedicated to my late dad, Stephen (Steve) McKibbin. TABLE OF CONTENTS Abstract ............................................................................................................................................................................. ii Certification of Thesis ........................................................................................................................................................ iii Acknowledgements ............................................................................................................................................................. iv Table of Contents ................................................................................................................................................................ v CHAPTER 1: INTRODUCTION .................................................................................................. 1 I INTRODUCING THE SUBSTANTIVE PUBLIC POLICY EXCEPTION AT COMMON ........................................ 1 II NAVIGATING PUBLIC POLICY’S PLACE, SCOPE, AND CONTENT ................................................................ 3 A Its Place in Theory .......................................................................................................................................... 3 B Its Scope and Content ..................................................................................................................................... 5 III RESEARCH QUESTIONS ....................................................................................................................................... 6 IV METHODOLOGY ................................................................................................................................................... 7 A Delimitation .................................................................................................................................................... 9 V ORIGINALITY AND CONTRIBUTION TO KNOWLEDGE ............................................................................... 10 VI MAPPING THE THESIS ....................................................................................................................................... 11 CHAPTER 2: COMMON LAW ORIGINS ................................................................................... 14 I INTRODUCTION .................................................................................................................................................. 14 II HISTORICAL BACKGROUND OF PUBLIC POLICY .......................................................................................... 17 A Medieval Sources and Writings on Public Policy............................................................................................ 17 B Nineteenth-Century Treatment of Public Policy ............................................................................................. 19 III CATEGORIES OF PUBLIC POLICY IN EARLY ENGLISH, SCOTTISH, AND IRISH CASES ........................... 22 A Contracts in Restraint of Trade ..................................................................................................................... 23 B Public and Political Corruption ..................................................................................................................... 25 1 Selling Offices ................................................................................................................................................. 25 2 Assignments of Half-Pay and Full Pay ...................................................................................................... 27 3 Simoniacal Contracts ..................................................................................................................................... 28 4 Influencing Elections and Parliamentary Decision-Making .................................................................. 30 C Commission of a Crime or Tort ..................................................................................................................... 31 D Smuggling ...................................................................................................................................................... 32 E Agreements Affecting the Administration of Justice ....................................................................................... 33 1 Maintenance and Champerty ....................................................................................................................... 33 (a) Persse v Persse ....................................................................................................................................... 34 2 Secret Compositions with Individual Creditors ....................................................................................... 35 F Sexual Immorality and Matrimonial Affairs ................................................................................................ 36 1 Matrimonial Affairs: Marriage Brokerage Contracts ............................................................................... 36 2 Sexual Immorality: Prostitution and Adultery .......................................................................................... 37 G Gambling: Betting, Gaming and Wagering ................................................................................................... 39 Table of Contents vi H Usurious Transactions .................................................................................................................................. 40 I ‘Catching Bargains’ with Expectant Heirs .................................................................................................... 41 IV CONCLUSION....................................................................................................................................................... 42 CHAPTER 3: THEORETICAL ORIGINS AND SOURCES ..................................................... 44 I INTRODUCTION .................................................................................................................................................. 44 II THEORETICAL INFLUENCES ON PUBLIC POLICY
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