CYIL vol. 11 (2020)

ABDULLAH ALDMOUR CYIL 11 (2020) rules of the good administration of justice was required. However, the presumption of the compatibility of the foreign laws with the foreign constitution must be observed in principle, and must be exercised with vigilance and attention, because the possible exercising of such a constitutional control of the foreign law by the Jordanian judge leads to grant him a quasi- politique mission. Similarly, if the control of the unconstitutionality is vested to a particular body in the foreign State where the ordinary judge is deprived of this jurisdiction, the Jordanian judge should not be entitled to exercise this control. An interesting article was published in 1958 by the German professor K.H. Neumayer 45 , “ Fremdes Rechtund Normenkontrolle ” (“Foreign law and the control of the legitimacy of norms”) according to professor Neumayer, the possibility for the national judge to refer by himself the question of constitutionality to the foreign constitutional court would be considered a good approach. In practice, as the French professor Patrick Kinsch pointed out, two judgments in German jurisprudence rendered in 1969 had the opportunity to respond to the prejudicial referral to the Italian constitutional court as requested by the litigants. Nonetheless, the Bavarian Supreme Court ruled that: “[T]he recourse to the international judicial assistance to have the review of the constitutionality of the foreign law would be incompatible with the principle of territoriality of the judicial power and it could not be extended in the absence of an international treaty”. 46 Apart from exercising the constitutionality review of foreign law before the national courts, the reserve of public order, the ultimate defense of the legal concepts and principles of the lex fori , allowing also to make the economy of constitutionality control, remains as a provisional reference in the hand of the national courts to exclude the application of a foreign law, in order to underpin the fundamental rights of constitutional origin and international. Thus, the exception of the public order tends to established on the basis of the international human rights provisions. The French Lautour v. Guiraud  47 case law of 1948 provides many considerable considerations. The exception of public order allows, for example, to oppose in France the production of certain legal effects concerning the polygamy or the repudiation of a married woman. In addition, the French conception of international public order tends to articulate on the bases of the international human rights provisions, and sometimes even to exclude the application of bilateral Conventions. 48 The Belgian case law also provides an example concerning the custody of a minor child, the foreign law establishing the application of the father’s law based on a criterion, the male sex of the parent seeking custody, considered to be contrary to the principle of parental equality and therefore contrary to the Belgian public order. 49

45 Ibid. 46 Ibid . 47 French Cass. Civ (25 mai 1948).

48 French Cass., civ., (17 février 2004), B.I, n° 47, D.2005.1266 obs. H. Chanteloup (répudiation unilatérale du mari et principe d’égalité des époux lors de la dissolution du mariage), quoted by ENCINAS de MUNAGORRI, Rafael, Droit international privé et hiérarchie des normes, REVUS, Journal for constitutional theory and philosophy of law (2013) : 76 ; And see French Cass., civ., (6 juillet 1988), Baaziz, R. 1989.71, note Lequette; and see Joanna Jemielniak, Legal Interpretation in International Commercial Arbitration, Routledge, (2016), 169. 49 LALIVE, Pierre, Tendances et Méthodes en Droit International Privé (Cours Général) , RC. vol. 155 (1977) : 249.

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