Perfecting Choice of Law and Choice of Forum Clauses: Scope of Capture, Conflict of Laws, Renvoi, and Best Practices

Issues of Enforceability and State Statutes That Limit Choice of Law Options

A live 90-minute CLE video webinar with interactive Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Thursday, November 10, 2022

1:00pm-2:30pm EST, 10:00am-11:30am PST

(Alert: Event date has changed from 8/30/2022!)

or call 1-800-926-7926

This CLE course will guide business counsel on how to perfect the choice of law and choice of forum clauses that are standard and often boilerplate in commercial agreements. The panel will discuss how to ensure these provisions sweep as broadly or as narrowly as desired, and the continued relevance of conflict of law rules. The panel will discuss the enforceability of choice of law provisions and which states have statutes that direct courts to disregard these provisions.

Description

While choice of law clauses have been used since the first half of the twentieth century, they were not widely used before 1960. Today such provisions are ubiquitous and are found in most commercial contracts. Choice of law clauses are meant to reduce litigation costs and promote litigation efficiency.

There are a number of recurring issues in drafting these provisions. Unsolved problems or unintended outcomes detract from the key purpose of promoting predictability. Language matters--some courts have held that a contract "interpreted" under the state's laws is different from a contract "governed" under that state’s law.

Whether or not a choice of law clause selects the tort and statutory law of a chosen jurisdiction, language limiting the provision to claims for breach of contract may require tort claims to be brought separately, and in another state, than the contract claims.

The courts have generally held that choice of law clauses only operate to select the substantive law of the chosen jurisdiction. However, when a particular issue straddles the line between substance and procedure, the question becomes more difficult. Does a clause that selects the "laws" of a state select the statute of limitations of that state? Some view this as procedural, others as substantive.

Often choice of law clauses provide that the laws of a particular state govern "without regard to its conflict of laws rules," but interpreting this remains unclear. There are limited court decisions interpreting a choice of law provision to select the whole law of the chosen jurisdiction.

When a choice of law clause selects the "laws" of a particular state, a question naturally arises whether the parties to the contract also intended to select any relevant provisions of federal law, or even foreign law.

Listen as our expert panel advises counsel on the unique considerations of drafting optimal choice of law and choice of forum clauses that address as many concerns as possible and reduce the likelihood of collateral litigation.

READ MORE

Outline

  1. Choice of law
    1. Choice of forum
    2. Scope of contract law
    3. Scope of tort and statutory law
    4. Substantive and procedural law
    5. Conflict of laws
    6. Federal law
  2. Best practices

Benefits

The panel will address these and other key issues:

  • When can and should procedural law be included in choice of law interpretation?
  • How are conflict of laws rules applied in choice of law provisions?
  • What are the best practices when addressing choice of law provisions when parties disagree on the choice of state?

Faculty

Miller, Rachel
Rachel Miller

Legal Director
ZwillGen

Ms. Miller is a seasoned transactional technology attorney with many years of both law firm and in-house experience....  |  Read More

Weiss, Charles
Charles A. Weiss

Partner
Holland & Knight

Mr. Weiss is head of the firm’s New York Intellectual Property Group. Combining accomplished trial lawyer with...  |  Read More

Attend on November 10

Cannot Attend November 10?

You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.

To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Video

Download