[Ws2-jurisdiction] [EXTERNAL] issues on applicable law

[Raphaël BEAUREGARD-LACROIX]

Paul: I am sorry if I did not express myself correctly but this is not
exactly what I meant, to the contrary: I think that the choice of law
clause would be given effects, but that there would be an issue of
compatibility (and interpretation) between certain clauses in the contract
and the way they are drafted (i.e. according to US law) and any other
eventual governing law, especially if such governing law also includes
elements of EU law.

Mike: as far as I understand the RA, it is specified that the arbitration
is to "occur" in LA, which I understand as meaning that both the seat and
the actual physical location of the arbitration proceedings is LA. In that
sense I do not see any choice of venue, but an imposed venue that is
California and more specifically LA. But did I read that wrongly and/or are
you saying something else?

Jorge: thank you for your replies. I think we mostly agree as far as choice
of venue is concerned. As for the governing law, I also get your point that
there are some super-mandatory provisions of EU law, for example, which
apply to any agreement to which a EU natural or legal person is party.
These apply anyway, whichever governing law is chosen. Maybe the language
of the RA could better reflect this reality though, but inserting such a
clause would certainly be an American legal reflex and not a civil law one
;) belt and suspenders!

I also understand your idea to increase flexibility by making categories of
contract provisions and then having different rules apply to these, but I
must say that I do not see this as a viable option. In my view this would
lead to a lot of interpretation troubles because obligations are often
related to each other.

I would rather go with a "menu" (the choice applying to the *whole
*contract) and
run the risk, to some extent, to have some provisions of the RA "knocked
out" of it by mandatory provisions of say French or Swiss and eventually EU
law than start dividing up the contracts into parts and have different laws
apply to these parts.

However as Milton and Paul point out, there is a problem with the menu
which is that of uniform application all over the world. Some registries
would "benefit" or "suffer" from a different in terms of substance by
choosing a different governing law in the menu.


2017-09-13 16:21 GMT+02:00 Mueller, Milton L <milton at gatech.edu>:

> Very interesting post Paul. But, are you agreeing or disagreeing with the
> "menu" being based on regions? If you are agreeing, then how do we avoid
> this problem:
>
> > And we cannot, from an accountability perspective,
> > want a world in which there are inconsistent results and how a contract
> > provision is enforced depends on whether the suit is brought in Europe
> or in
> > Asia.  That type of uncertainty is also the enemy of accountability.
> Thus, I
> > disagree with the submission that the presumption should be that the law
> of
> > the registry apply to the agreement. That way lies chaos.
> >
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Raphaël Beauregard-Lacroix
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