The article examines the private international law consequences of the increasing
role of the public law regulation, which it plays in international cases. In that
context, the paper looks at the concept of the overriding mandatory rules as accepted also
in the Polish private international law, as well as at the regulation of Article 6(1) of the
Act on Private International Law of 2011. According to that rule: „The applicable law,
determined in accordance with the provisions of this act, encompasses the rules of public
law, if they should be applied under the applicable law to a given legal relationship”. This
means that the legal system determined as applicable by the Polish conflict of laws rule,
whether domestic or foreign, should be applied as a whole, including its public law rules.
It is the law applicable itself that determines whether a given rule of public law should be
applied. The public nature of the rule in question does not preclude its application. The
judge at the forum does not have a competence to manipulate the applicable law by a priori
categorizing the rules of law to the realm of public law and for that reason refuse their
application. This, however, does not mean that all the public law rules of the applicable
law will be applied. Their application depends foremost on their own „intent to apply”,
which means that their rationae materiae and rationae personae scope of application
covers the given factual situation, because of a certain connection with the territory of
the given state. Moreover, the competences of the authority are relevant. The court at the
forum cannot assume competences of the public authority of the state, the law of which is
applicable. As a consequence, the court is, inter alia, bound by the sanction provided in
the applicable law, and must apply it, provided that it remains in its competences. It cannot,
however, exercise public powers over the parties to the disputed legal relationship.
In case there is a conflict between foreign public law and the forum’s domestic public law,
in principle the latter has priority
