Funciones de las cláusulas de excepción en el proceso de localización de la norma de conflicto

Abstract

An important aspect of flexibility is that, without abandoning the localisation process, it counteracts the rigidity of the connections of the conflict of law rules that may appoint, in certain circumstances, a legal system with weak links to the case and may give rise to undesired results. In the national and international codification of private international law, some texts have turned to a so-called «exception clause» which allows judges to have the institutionalized power to determine the applicable law, as long as the situation has an unequivocally «closer connection» with another law other than the one designated by the conflict of law rule. The exception clauses designed for specific situations have proved to be useful and, therefore, have been welcomed as an important correction instrument and as an excellent mechanism for specialisation in accordance with the degree of heterogeneity. Its use helps to consolidate the necessary certainty and predictability of the conflict of law rules and, therefore, the satisfaction of the proximity principle. Obviously, this localisation must be understood in a material sense. The exception clause will deploy its usefulness if it acts as a localisation technique included in the conflictual mechanism that seeks the right answer, taking into account the material objectives sought in the solution of the case.