'ESCAPE CLAUSE' IN INTERNATIONAL FAMILY, PROPERTY AND SUCCESSION LAW

This article discusses the regulation of the escape clause in private international family, property and succession law from the perspective of the jurisdiction of a Polish court or other authority, like a notary public. In cases concerning family, property and succession, the predictability of the applicable law is of particular importance as private laws in those matters differ in substantial way from one country to another. Whereas the escape clause exceptionally allows the court for the a posteriori application of the law more closely connected or at least substantially connected to the case which can create a situation of uncertainty of applicable law for the involved parties. The functioning of the escape clause in the family (parental responsibility and maintenance), property (transit goods) and succession private international law is analysed in this article. The common features and the particularities of the legal regulation are presented. First, the law that is manifestly more closely connected to the case, no matter if family, property or succession, is indicated on the basis of all circumstances of the case and not only one (or two), as is the case in the indication of law on the basis of the connecting factor. Those circumstances are different depending on the hypothesis of the legal norm (e.g., different for transit goods than for the succession case), the wording of the escape clause and are estimated by the court a posteriori on the basis of all facts of the case. Second, the application of the escape clause is excluded if there is a choice of law (although in some cases parties are not allowed to choose law, e.g., for transit of goods or parental responsibility). Third, the escape clause is applicable exceptionally, as it introduces the uncertainty of law. Fourth, the escape clause is not regulated uniformly in international family, property and succession law. Moreover, the article presents how values such as legal certainty and flexibility are balanced by the legal regulation of the escape clause in family, property and succession private international law in order to indicate the law most closely related to a given relationship.