Versatility of the exception clause

Abstract

The purpose of this study is to explore the exception clause, which national or international legislators use to introduce flexibility into the system of private international law, providing a corrective to the rigid localization of the case brought about by the conflict rules. The origins of the exception clause lie in the contractual field, outside the European judicial area (and precisely in Switzerland), where they made their first appearance in 1980. The Rome Convention on the law applicable to contractual obligations draws from the Swiss experience not only the connecting factor (the characteristic performance of the contract) but also precisely the exception clause which allows the application of a law different from that in principle applicable when it appears from the overall circumstances that the contract has a closer connection with another country. The clause now appears in the regulations on the law applicable to non-contractual and contractual obligations, successions mortis causa and marital property relationships. The Hague Conventions on the protection of minors (1996) and adults (2005) also provide for an exception clause, which differs from the European one (which we could define as proximity-focused) due to the fact that it is declaredly person-centered: the clause, in fact, operates only “to the extent that the protection of the person or property” of the minor or adult requires it.