Introduction
Virtually every word in the choice-of-law clause has a hidden meaning. There are, broadly speaking, seven separate interpretive issues that are litigated and relitigated with respect to these provisions: (1) choice of law, (2) scope (contract law), (3) scope (tort and statutory law), (4) substantive and procedural law, (5) conflict of laws, (6) federal law, and (7) temporality.
Choice of Law
The courts should always apply the law of the jurisdiction selected in the choice-of-law clause to interpret the language in the choice-of-law clause. This conclusion follows logically from the fact that the parties to the agreement could have rewritten their choice-of-law clause to state their intentions more clearly and resolve any ambiguity. If the parties may obtain a particular result by redrafting their agreement, there is no reason why they should not be able to obtain this same result by selecting the interpretive rules of the chosen jurisdiction.
This approach is fully consistent with Section 187 of the Restatement (Second) of Conflict of Laws. That Section provides that the parties can choose any law they want “if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.” Since the precise meaning of a particular provision is an issue that may be resolved by an explicit provision in the agreement—the parties could, after all, rewrite the clause to say something different—the courts should apply the law of the jurisdiction named in the choice-of-law clause to interpret that clause.
Scope Issues – Contract Law
Some choice-of-law clauses state that the agreement shall be “interpreted” or “construed” in accordance with the law of the chosen jurisdiction. Others state that the agreement shall be “governed” by the law of the chosen jurisdiction. While most courts have held that it makes no difference whether the clause uses the word “interpreted,” “construed,” or “governed,” a few courts have held otherwise. This smattering of contrary interpretive holdings brings us to the first interpretive issue that sometimes arises in the context of a choice-of-law clause—the scope of the clause with respect to contract law.
The contract law of a particular jurisdiction addresses many different topics. In Ohio, for example, the law of contracts covers issues such as (1) contract defenses, (2) contract damages, and (3) contract interpretation. To understand the significance of this last item, imagine a scenario where the courts in Kentucky have held that the term “minerals” in a conveyance includes oil and gas. Imagine further that the courts in Ohio have held that the term “minerals” in a conveyance does not include oil and gas. If the contract is governed by Kentucky law, then the oil and gas was part of the conveyance. If the contract is governed by Ohio law, then it was not.
When a choice-of-law clause states that it is to be “interpreted” or “construed” in accordance with the laws of Ohio, then there can be no question that the clause selects the interpretive law of Ohio. This is an easy question. The harder question is whether this choice-of-law clause selects the rest of Ohio contract law. Does it choose that state’s law of contract damages? Contract defenses? If one reads the clause literally, the answer may well be no. The clause merely states that the contract is to be interpreted or construed in accordance with the laws of Ohio. It does not say anything about the rest of that state’s contract law.
As a practical matter, such a narrow reading of the clause is probably not what most parties intend. Accordingly, most courts have held that a choice-of-law clause stating that the contract shall be “interpreted” or “construed” in accordance with the laws of a given state operates to select the contract law of the chosen jurisdiction in its entirety. However, a few courts have read these clauses literally and held that they only select that portion of chosen jurisdiction’s law that deals with contract interpretation.
The easiest way to draft around this problem is to add the word “governed” to the clause. All courts agree that this word clearly signals the intent of the parties to select all of the contract law of the chosen jurisdiction… not just the portion of that law relating to contract interpretation.
Scope Issues – Tort and Statutory Law
As choice-of-law clauses have proliferated, another interpretive issue that frequently arises is whether these provisions select the tort and statutory law of the chosen jurisdiction. Imagine a scenario where the choice-of-law clause in the contract states that it shall be “governed by the laws of the State of New York.” One party to the agreement sues the other for (1) breach of contract, (2) fraud, and (3) unfair and deceptive trade practices. While the choice-of-law clause clearly applies to the breach of the contract issue, it is less clear whether it applies to the claim for fraud (a tort) or the statutory claim for unfair and deceptive trade practices.
To resolve this ambiguity, the courts will first look to see if the clause contains any language suggesting that the parties intended for it to apply to tort and statutory claims. Most courts have held, for example, that a clause stating that it shall apply to claims “relating to” the agreement or claims arising “in connection with” the agreement suggests the parties wanted the clause to apply to related tort and statutory claims. Similarly, most courts agree that clauses stating that they shall apply only to “claims for breach of contract” do not evidence a similar intent. When a clause contains such express language, the interpretive task is relatively straightforward.
Unfortunately, many clauses do not contain such express language. These generic clauses sometimes state that the agreement shall be “interpreted” or “construed” or “governed” in accordance with the chosen law. In other cases, the clause may by its terms apply to clauses “arising out of” the contract. In these situations, the courts must fashion an interpretive default rule to determine whether the clause applies to tort and statutory claims.
The courts in some states (Florida, New York, Texas) have held that generic clauses do not apply to tort and statutory claims. In these states, the parties are deemed not to have selected any law to govern these claims and the courts must perform a choice-of-law analysis with respect to the non-contract claims. The courts in other states (California, Minnesota, Virginia) have held that generic clauses do generally apply to tort and statutory claims. In these states, the parties are deemed to have select the tort and statutory law of the chosen jurisdiction to govern these claims and there is no need for the court to perform a choice-of-law analysis. This split in authorities means that an identically worded choice-of-law clause may have a different scope in different states.
Substantive vs. Procedural Law
Courts in the United States have long distinguished between procedural and substantive law. The standard formulation holds that the substantive law of a jurisdiction relates to the right and the procedural law of a jurisdiction relates to the enforcement of the right. Tort and contract law are typically classified as substantive law. The law of evidence is typically classified as procedural law. There are, however, several issues that straddle the line between substantive and procedural law. One such issue is statutes of limitations. Roughly half of all states view statutes of limitations as procedural. The other half view statutes of limitations as substantive.
The courts have generally held that choice-of-law clauses only operate to select the substantive law of the chosen jurisdiction. It would be exceedingly difficult, for example, for the courts of Utah to apply the evidentiary rules of Colorado. Accordingly, the Utah courts will not apply the evidentiary rules of Colorado even if the contract in question contains a Colorado choice-of-law clause.
When a particular issue straddles the line between substance and procedure, however, this rule raises interesting interpretive questions. The most frequently litigated issue in this vein relates to statutes of limitations. When a clause selects the “laws” of a state, does that clause select the statute of limitations of that state or not? Most courts have answered that question by looking to how the chosen jurisdiction classifies statutes of limitation. Florida, for example, has held that statutes of limitations are substantive. When a choice-of-law clause selects the law of Florida, therefore, that clause should be interpreted to select that state’s statutes of limitation. New York, by comparison, has held that statutes of limitations are procedural. When a choice-of-law clause selects the law of New York, therefore, that clause should be interpreted not to select that state’s statutes of limitation. The same general approach is applied to other issues that straddle the substantive/procedural divide.
A few choice-of-law clauses expressly address this issue, thereby making it unnecessary for courts to interpret the clause. These clauses typically state that they choose the “substantive and procedural law” of the chosen jurisdiction or that any actions to “enforce” the agreement shall be brought in accordance with the law of the chosen jurisdiction. There are obviously limits on this practice. Even if the parties purport to select the procedural law of Colorado in their choice-of-law clause, it is unlikely that the Utah court will apply that state’s law of evidence. Clauses that expressly address the issue can, however, provide some clarity with respect to issues that lie in the shadowlands between substance and procedure.
Conflict of Laws
Many choice-of-law clauses provide that the contract is to be governed by the laws of a particular state “without regard to its conflict of laws rules.” This was not always the case. Such language only began appearing in choice-of-law clauses around 1970. As this language has become more common, however, it has created questions. What exactly does it mean? And is it strictly necessary for a clause to include this language?
To answer these questions, it is necessary to draw a distinction between the “internal” law of the chosen jurisdiction and the “whole law” of the chosen jurisdiction. The internal law of the chosen jurisdiction does not include that jurisdiction’s choice-of-law rules. The whole law of the chosen jurisdiction includes its choice-of-law rules. Choice-of-law rules, it will be recalled, are the rules that allow a court to determine which jurisdiction’s law to apply when the transaction or the parties have a connection to more than one place. The parties who write a choice-of-law clause into their agreement typically don’t want to select the choice-of-law rules of the chosen jurisdiction because the application of those rules could result in the application of the rules of yet another jurisdiction. If the parties choose Pennsylvania law to govern their agreement, for example, and if the choice-of-law rules of Pennsylvania direct the court to apply Alabama law, the parties don’t want the court to apply the whole law of Pennsylvania and then the contract law of Alabama. They want the court to apply the internal law of Pennsylvania and then the contract law of Pennsylvania. When the parties select the “laws” of a place in their choice-of-law clause, therefore, they almost always intend to select the internal law of that place rather than its whole law.
Adding the phrase “without regard to its conflict of laws rules” to a choice-of-law clause makes this implicit preference explicit. It should be emphasized, however, there are virtually no cases where the courts have ever interpreted a choice-of-law clause to select the whole law of the chosen jurisdiction. Most courts recognize that such an approach would defeat the certainty and predictability that choice-of-law clauses seek to provide in the first place. There is no harm in adding this language to one’s choice-of-law clause. Most courts will, however, read it into the clause even if it is absent.
To answer these questions, it is necessary to draw a distinction between the “internal” law of the chosen jurisdiction and the “whole law” of the chosen jurisdiction. The internal law of the chosen jurisdiction does not include that jurisdiction’s choice-of-law rules. The whole law of the chosen jurisdiction includes its choice-of-law rules. Choice-of-law rules, it will be recalled, are the rules that allow a court to determine which jurisdiction’s law to apply when the transaction or the parties have a connection to more than one place. The parties who write a choice-of-law clause into their agreement typically don’t want to select the choice-of-law rules of the chosen jurisdiction because the application of those rules could result in the application of the rules of yet another jurisdiction. If the parties choose Pennsylvania law to govern their agreement, for example, and if the choice-of-law rules of Pennsylvania direct the court to apply Alabama law, the parties don’t want the court to apply the whole law of Pennsylvania and then the contract law of Alabama. They want the court to apply the internal law of Pennsylvania and then the contract law of Pennsylvania. When the parties select the “laws” of a place in their choice-of-law clause, therefore, they almost always intend to select the internal law of that place rather than its whole law.
Adding the phrase “without regard to its conflict of laws rules” to a choice-of-law clause makes this implicit preference explicit. It should be emphasized, however, there are virtually no cases where the courts have ever interpreted a choice-of-law clause to select the whole law of the chosen jurisdiction. Most courts recognize that such an approach would defeat the certainty and predictability that choice-of-law clauses seek to provide in the first place. There is no harm in adding this language to one’s choice-of-law clause. Most courts will, however, read it into the clause even if it is absent.
Federal Law
When a choice-of-law clause selects the “laws” of a particular state, one question that naturally arises is whether the parties to the contract also intended to select any relevant provisions of federal law. In many cases, party preferences with respect to this issue will be irrelevant; mandatory rules of federal law apply regardless of party intent. In cases where the relevant provisions of federal law are mere default rules, however, then an interpretive question arises. Did the parties intend to select state law to the exclusion of the federal default rule? Or did they intend to select the federal default rule as an alternative to state law?
This question arises most frequently with respect to two bodies of federal law. The first is the Federal Arbitration Act (FAA). The second is the United Nations Convention on Contracts for the International Sale of Goods (CISG). The FAA overlaps to a significant extent with the Uniform Arbitration Act that is in force in many states. The CISG overlaps to a significant extent with Article 2 of the Uniform Commercial Code (UCC). When the parties choose to have their international sales contract governed by the “laws” of Illinois, did they intend to select Article 2 of the UCC? Or did they intend to select the CISG? Either outcome is permissible because the parties are free to exclude the CISG if they so desire. The question is what the parties intended.
To date, most courts have invoked the Supremacy Clause to hold that parties generally intend to select federal law to the exclusion of state law when they select the “laws” of a particular state in their choice-of-law clause. These courts have reasoned that federal law is a part of state law and that while the parties have the ability to exclude federal law, they must clearly state their intent if this is what they want to do. If an international sales contract states that “the CISG shall not apply,” for example, this constitutes clear evidence of party intent to exclude the treaty. A mere statement that “this contract shall be governed by the laws of the State of Ohio” is not enough. Similarly, a contract must clearly state that the “Federal Arbitration Act shall not apply” in order to exclude that Act from the scope of the parties’ choice-of-law clause. Absent such a clear statement of party intent, most courts have held that the default federal rule preempts any inconsistent state rules even if the contract contains a choice-of-law clause selecting the laws of a specific state.
Temporality
The last interpretive issue presented by choice-of-law clauses has to do with timing. Are the parties choosing the law of the chosen jurisdiction as it existed at the time when the contract was signed? Or are the parties choosing the law of that jurisdiction as it exists at the time of litigation? Some scholars argue that most parties want to select the law as it existed at the time the contract was signed on the theory that the courts should protect the parties’ reasonable expectations. The better position is that most parties want to select the law as it exists at the time of litigation. Since most parties do not conduct extensive research into the law of the chosen jurisdiction at the time of contracting, there are rarely any expectations to protect. The purpose of a choice-of-law clause is, moreover, to reduce litigation costs and promote litigation efficiency. These efficiency gains are substantially reduced if the parties must seek to “reconstruct” the law as it existed years before at the time the contract was signed in order to establish their case.
Drafting Tips
The foregoing discussion of interpretive rules naturally leads to a single question: How do I draft my choice-of-law clause to get what I want? The answer to this question depends on what exactly you’re looking for. If you are in a strong negotiating position and want to lock in the law of your home jurisdiction to give you an advantage in any litigation, you will want to draft one type of clause. If you are in a weak negotiating position and want to limit the scope of the choice-of-law clause selecting a jurisdiction whose law is unfavorable to you, you will want to draft a very different type of clause.
If the goal is to narrow the scope of the choice-of-law clause as much as possible, the following clause represents one possible approach:
This Agreement shall be interpreted in accordance with the laws of the State of ________.
This bare-bones clause leaves considerable room for maneuvering with respect to choice-of-law issues after the dispute arises. On the other hand, if the goal is to draft a clause that maximizes the likelihood that the law of the chosen jurisdiction will be applied to all aspects of the dispute, the following clause may be preferred:
This Agreement and all claims relating thereto shall be governed by the substantive and procedural laws of the State of ________, as they presently exist or may hereafter be amended, without regard to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
This clause covers contract claims (“governed by”), tort and statutory claims with some connection to the contract (“related thereto”), and procedural issues that straddle the substantive/procedural divide (“procedural”). It selects the laws of the chosen jurisdiction as they exist at the time of litigation (“may hereafter be amended”). It excludes the choice-of-law rules of the chosen jurisdiction (“without regard to principles of conflict of laws”). If the agreement is an international sales contract, the addition of the final sentence serves to exclude the CISG and ensure that a court will instead apply the chosen state’s version of UCC Article 2 in its place.
Boilerterms 