Zombie Choice-of-Law Clauses
When a contract is terminated, the provisions contained in that agreement generally cease to have any legal effect. Many U.S. courts have held, however, that contract provisions relating to dispute resolution continue to bind the parties even after the underlying contract ceases to be. In this post, I refer to such provisions as “zombie” clauses…
Continue ReadingMore on the Validity of the PDVSA 2020 Bonds
Governments with no realistic prospect of paying their debts often gamble for redemption, trying desperately to avoid default. Political leaders, with good reason, fear that a debt default will get them thrown out of office. But in trying to hold power, sometimes by borrowing even more, they often make matters worse for the country and…
Continue ReadingThe Billion-Dollar Choice-of-Law Question
Choice-of-law rules can be complex, confusing, and difficult to apply. Nevertheless, they are vitally important. The application of choice-of-law rules can turn a winning case into a losing case (and vice versa). A recent decision in the U.S. Court of Appeals for the Second Circuit, Petróleos de Venezuela S.A. v. MUFG Union Bank, N.A., is…
Continue ReadingNow or Then? The Temporal Aspects of Choice-of-Law Clauses
Several years ago, I published a paper that examined how U.S. courts interpret choice-of-law clauses. That paper contains a detailed discussion of the most common interpretive issues—whether the clause selects the tort laws of the chosen jurisdiction in addition to its contract laws, for example—that arise in litigation. There was, however, one important omission. The…
Continue ReadingContractual Waivers of Foreign Sovereign Immunity
The Foreign Sovereign Immunities Act (FSIA) provides that foreign states are immune from suit in the United States unless an exception applies. An important and long-standing exception to immunity is consent (the more common term in international practice) or waiver (the term used in the United States). The FSIA provides that a foreign state shall…
Continue ReadingThe Extraterritorial Application of State Wage and Hour Laws
Many U.S. states have enacted wage and hour laws. These laws generally set a minimum wage and require employers to pay overtime. When a company headquartered in one state hires an employee to perform work in a foreign country, however, it is not always clear which jurisdiction’s laws will apply. Is the payment of wages…
Continue ReadingRewarding Ignorance of the CISG: A Response to John Coyle
In a recent post, Professor John Coyle considers the interpretation of the following choice of law (“COL”) clause in an international contract for sale of goods where both parties are located in Contracting States to the U.N. Convention on Contracts for the International Sale of Goods (CISG): “This Agreement shall be governed by the laws…
Continue ReadingCISG Opt-Outs and Party Intent
The United Nations Convention on Contracts for the International Sale of Goods (CISG) is one of the most widely adopted commercial law treaties in the world. It functions as an “international” version of Article 2 of the Uniform Commercial Code (UCC) and, as such, provides the governing law for many cross-border agreements involving the sale…
Continue ReadingThe Comparative Value of Choice of Law and Forum Selection Clauses
Choice-of-law clauses and forum selection clauses routinely come before courts hearing transnational cases. A choice-of-law clause selects a law to govern the contract. A forum selection clause chooses a court in which to resolve disputes. These differences notwithstanding, the two clauses are often discussed in the same breath. Leading casebooks on conflict of laws examine…
Continue ReadingRecent Scholarship on Foreign Judgments
Michael Solimine recently posted an interesting paper exploring the connection between party autonomy, on the one hand, and the recognition and enforcement of foreign judgments, on the other. Solimine thoughtfully engages with the argument that private parties should be permitted to select, in advance, the law that will govern the recognition and enforcement of foreign…
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