Understanding 2 Concepts of Public Order in Private International Law and Their Relation to Vested Rights

You will find an explanation of how public order becomes the basis for judges and judicial institutions to set aside foreign law in a Private International Law case, taking into account social, cultural and societal developments. In addition, this article also explains the relationship between the concept of public order and the concept ofVested Rights(legal rights and obligations acquired) and how this relates to the recognition of foreign law in the context oflex fori(the law applicable in a particular jurisdiction). In this article, you will understand how this concept can affect same-sex marriage and the recognition of foreign law in Indonesia. By:   Dedon Dianta  

I. Public order in Private International Law

Public order (public order) is a concept inCivil LawInternational which becomes the reason or basis for a judge or judicial institution to be able to override foreign legal systems, foreign legal rights and obligations, and foreign legal rules. The foundation of public order in the context ofCivil LawInternationally, the starting point stems from the idea that judicial institutions are one of the state structures that possess sovereignty. Therefore, judicial institutions have the right to choose which law will apply to all cases resolved within the judicial institution.This becomes a problem when the case being resolved involves foreign elements, or there are obligations and/or rights obtained through foreign legal provisions, thus involving foreign jurisdiction.In this case, it certainly raises the question of the extent to which judicial institutions have an obligation to involveandrejection in several countries regarding same-sex marriage. The connection with human rights is the reason for many countries to recognize the legality of same-sex marriage, so the state has no right to prohibit it. Likewise with public acceptance in their country. If we associate it with the concept of public order, it can be said that countries that reject same-sex marriage do so because of the rejection from the majority of society in that country. The concept of public order contains peace and comfort in society that cannot be touched, growing and developing in the midst of society in a country that is also influenced by economic, social, cultural, and religious values. As an example, Indonesia can reject the legal recognition of same-sex marriage. The reason underlying this is also because it is contrary to the concept of public order, even though the marriage receives legal recognition in other countries. The concept of public order in Private International Law also has a positive impact in supporting the interests of the lex fori, but it has a negative impact if used excessively. This becomes an obstacle in international relations, slows down the lex fori, or even causes injustice. The concept of public order in Private International Law has 2 functions, including: