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Choice of Law Resolved by Rules or Presumptions with an Escape Clause

Authors: Kurt H. Nadelmann;

Choice of Law Resolved by Rules or Presumptions with an Escape Clause

Abstract

Putting into one's written law a binding rule and then authorizing the court to disregard it, if the court does not like the result, is a proposition not everybody may like to take seriously. However, a Government Bill before the Swiss Parliament, the product of several years of study and designed to codify private international law, states in Article 14 that the law designated by the Act shall be inapplicable "exceptionally", if, in considering all circuimstances, it is manifest that the facts of the case have only a very weak link with the designated law and a much closer relation with another.2 Vhile reactions abroad are varied3 and views on the subject are not unanimous in Switzerland, wide agreement seems to exist there that, in a Swiss setting, abuse of the escape clause is not very likely. Reference is always made to the famous Article I(2) of the Swiss Civil Code providing that, in case of gaps in the Code, courts shall act as if they were legislators. The power has not been abused, it would seem.4

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
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