5.5 The exceptions of ordre public, fraus legis and international mandatory rules
There are a few exceptions regarding the application of foreign law; the catchwords are ordre public, fraus legis and international mandatory rules.
In the Eimskip case it was argued that the special rules in the Maritime Employment Act on protection of employment - i.e. rules on dismissal etc. - were of such a nature that Antiguan law could not be applied.
As for international mandatory rules, the Court stated that one aspect of this doctrine is that:
“a Norwegian rule of law can be so fundamental that it has to be applied irrespective of which law is applicable in other respects” (para. 39, my translation).
The condition is, however, the Court continued, that the Norwegian rule is applicable in the present instance, and here there are no grounds for holding that the rules on job protection should have a wider application than the other rules of the Maritime Employment Act - and the Act, according to the Court’s findings, is not applicable to employment on a non-Norwegian vessel.
The remaining possible exception is ordre public: when application of foreign law gives a result contrary to “fundamental principles” in the state where judgment is given, foreign law will not be applied. However, whether the application of Antiguan law will give such a result is not a question of choice of law: it is a substantive question to be decided in the principal case (para. 40).