Strani pravni život (Jan 2019)
Exception clause in private international law
Abstract
If the civil relations with the foreign element have a weak connection with a state whose law has been determined as applicable by the choice of law rule, but significantly closer connection to the law of another country, then the exception clause will apply, without taking into account the above mentioned applicable law. Our legislation in the field of Private International Law does not yet know this clause, but it is envisaged in the Draft Act on Private International Law of Serbia. The paper analyses the justification of the application of the exception clause, which changes the legal nature of the choice of law rule, and favours the facts relating to the civil relations themselves as elements that determine the applicable law. The author also addresses the regulation of this clause in individual countries, whether within or outside the EU. Almost all countries similarly regulate this institute. The exception clause is, mostly, defined in a general way. Likewise, most legislation provides that this clause will not apply in the case of a choice of law by the parties. After all, the paper also analyses in particular the possibility of applying this clause in contractual relations with a foreign element. The author concludes that the exception clause must not be equalized with institutes of private international law such as: renvoi, fraus legis, public policy, proper law theory, etc. Namely, these institutes, also, lead to the application of a different right to that determined by the choice of law rule, but for other reasons, which are related to the violation of the law.
