Idiosyncratic Approaches to Enforcing Choice-of-Law Clauses
On December 16, 2025, the Sixth Circuit decided Andujar v. Hub Group Trucking, Inc. The issue presented was whether the Tennessee Supreme Court had adopted Section 187 of the Restatement (Second) of Conflict of Laws as the test for determining whether a choice-of-law clause should be given effect as a matter of Tennessee common law….
Continue ReadingDim Sum Bonds, Panda Bonds, and Dispute Resolution
China’s push to internationalize the renminbi (RMB, or yuan) since 2008 has led to the growing share of RMB-denominated bonds in the international bond market. So-called “panda bonds” and “dim sum bonds” are variants of RMB-denominated bonds. Panda bonds are onshore RMB debt issued in China by entities domiciled outside mainland China. Overseas issuers use…
Continue ReadingThe Marginal Utility of Choice-of-Law Clauses
I spend a lot of time researching and writing and thinking about choice-of-law clauses. So much so that I sometimes worry that I’ve fallen victim to a cognitive bias known as the law of the instrument or (more colorfully) Maslow’s Hammer. This bias arises when a person acquires a specific skill and thereafter looks for…
Continue ReadingOpting Out of Federal Law II: Foreign Choice-of-Law Clauses
In a prior post, I examined when a choice-of-law clause selecting the law of a U.S. state may be used to avoid federal laws. In this post, I consider whether a choice-of-law clause selecting the law of a foreign country may be used to accomplish this same goal. The post first examines situations where the…
Continue ReadingOpting Out of Federal Law I: State Choice-of-Law Clauses
Most provisions of federal law are mandatory. One cannot opt out of the tax code, the wire fraud statute, or civil rights laws. There are, however, a handful of federal laws that are not mandatory. These laws expressly state that they shall not apply if private actors write language into their contracts opting out. A…
Continue ReadingA Costly Drafting Mistake
When I teach Conflict of Laws, I spend a lot of time showing my class how to draft a good choice-of-law clause. It’s not hard. Everything you need to know is laid out in the Primer on Choice-of-Law Clauses. Unfortunately, these instructions are not always followed. In one recent case, Pool Scouts Franchising LLC v….
Continue ReadingMicrosoft Contract Day 2025!
Two years ago today, I authored a post titled “Microsoft’s Dispute Resolution Provisions Are a Mess.” I argued that the “Jurisdiction and Governing Law” language in the form purchase order used by Microsoft and its subsidiaries in 109 countries around the world was “incoherent.” My goal in writing the post was to inspire/shame Microsoft –…
Continue ReadingInterpreting Choice-of-Law Clauses Waiving Sovereign Immunity
The Foreign Sovereign Immunities Act provides that a foreign state shall not be immune if it has “waived its immunity either explicitly or by implication.” Over the past forty years, U.S. courts have consistently held that a choice-of-law clause selecting the law of a U.S. state constitutes an implied waiver of foreign sovereign immunity. In…
Continue ReadingPrenuptial Agreements and Choice-of-Law Clauses
Choice-of-law clauses began appearing in prenuptial agreements long before they showed up in most other types of contracts. As early as 1874, Isabella Robinson and John Warner selected the law of Illinois to govern their prenup. The popularity of such clauses in this context is easy to understand. When the bride is domiciled in one…
Continue ReadingGreat Lakes in Action
On February 21, 2024, the U.S. Supreme Court decided Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC. Loyal readers will remember (see here and here and here and here) that this case presented the question of what test to apply to determine the enforceability of a choice-of-law clause governed by federal maritime law….
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