Law
Thomas Hirse
Die Ausweichklausel im Internationalen Privatrecht
Methodentheoretische und -kritische Gedanken zur Konkretisierung einer besonderen kollisionsrechtlichen Generalklausel
[The Exemption Clause in International Private Law. Methodological and Critical Thoughts on the Concretion of a Special General Clause in the Conflict of Laws.]
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Published in German.
At first sight, the exemption clauses in international private law seem somewhat peculiar. However, today they are a significant part of the most recent acts in the field of conflict of laws. They are the well-known means of recovering the so-called classical approach of Savigny from the criticism of the modern American approaches of Currie, Cavers and others which were fashionable in Europe after World War Two. In this work, Thomas Hirse studies the exemption clauses and the questions they raise in the general theory of the conflict of laws. Against the backdrop of the problems caused by the concretion of these general clauses, he does a detailed analysis of the status of general methodology in the conflict of laws. The author is critical of the fact that the main approach to concretise the exemption clauses discussed in literature using groups of comparable cases does not meet the requirements of their function and is not the normative method. Instead he prefers to concretise the exemption clauses by analysing and weighing the private interests of the persons involved in the individual case concerned.