Choice of law in the American courts in 2009: Twenty-third annual survey

American Journal of Comparative Law

Volumn 58, Issue 2, 2010, Pages 227-306

  Symeonides, Symeon C ^a  

^a WILLAMETTE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 79960246323     PISSN: 0002919X     EISSN: None     Source Type: Journal    
DOI: 10.5131/ajcl.2009.0009     Document Type: Review

References (42)

1. The previous twenty-two surveys are, in chronological order: P. John Kozyris, Choice of Law in the American Courts in 1987: An Overview, 36 AM. J. COMP. L. 547 (1988);
2. Symeon C. Symeonides, Choice of Law in the American Courts in 1988, 37 AM. J. COMP. L. 457 (1989);
3. P. John Kozyris & Symeon C. Symeonides, Choice of Law in the American Courts in 1989: An Overview, 38 AM. J. COMP. L. 601 (1990);
4. Larry Kramer, Choice of Law in the American Courts in 1990: Trends and Developments, 39 AM. J. COMP. L. 465 (1991);
5. Michael E. Solimine, Choice of Law in the American Courts in 1991, 40 AM. J. COMP. L. 951 (1992);
6. Patrick J. Borchers, Choice of Law in the American Courts in 1992: Observations and Reflections, 42 AM. J. COMP. L. 125 (1994);
7. Symeon C Symeonides, Choice of Law in the American Courts in 1993 (and in the Six Previous Years), 42 AM. J. COMP. L. 599 (1994);
8. Symeon C Symeonides, Choice of Law in the American Courts in 1994: A View 'From the Trenches,' 43 AM. J. COMP. L. 1 (1995);
9. Symeon C. Symeonides, Choice of Law in the American Courts in 1995: A Year in Review, 44 AM. J. COMP. L. 181 (1996);
10. Symeon C. Symeonides, Choice of Law in the American Courts in 1996: Tenth Annual Survey, 45 AM. J. COMP. L. 447 (1997);
11. Symeon C Symeonides, Choice of Law in the American Courts in 1997, 46 AM. J. COMP. L 233 (1998);
12. Symeon C Symeonides, Choice of Law in the American Courts in 1998: Twelfth Annual Survey, 47 AM. J. COMP. L. 327 (1999);
13. Symeon C. Symeonides, Choice of Law in the American Courts in 1999: One More Year, 48 AM. J. COMP. L. 143 (2000);
14. Symeon C. Symeonides, Choice of Law in the American Courts in 2000: As the Century Turns, 49 AM. J. COMP. L. 1 (2001);
15. Symeon C. Symeonides, Choice of Law in the American Courts in 2001: Fifteenth Annual Survey, 50 AM. J. COMP. L. 1 (2002)
16. Symeon C. Symeonides, Choice of Law in the American Courts in 2002: Sixteenth Annual Survey, 51 AM. J. COMP. L. 1 (2003)
17. Symeon C. Symeonides, Choice of Law in the American Courts in 2003: Seventeenth Annual Survey, 52 AM. J. COMP. L. 9 (2004);
18. Symeon C Symeonides, Choice of Law in the American Courts in 2004: Eighteenth Annual Survey, 52 AM. J. COMP. L. 919 (2004)
19. Symeon C. Symeonides, Choice of Law in the American Courts in 2005: Nineteenth Annual Survey, 53 AM. J. COMP. L. 559 (2005)
20. Symeon C. Symeonides, Choice of Law in the American Courts in 2006: Twentieth Annual Survey, 54 AM. J. COMP. L. 697 (2006)
21. Symeon C. Symeonides, Choice of Law in the American Courts in 2007: Twenty-First Annual Survey, 56 AM. J. COMP. L. 243 (2008);
22. and Symeon C Symeonides, Choice of Law in the American Courts in 2008: Twenty-Second Annual Survey, 57 AM. J. COMP. L. 269 (2009). Hereinafter, these Surveys are referred to only by the author's name and the survey year.
23. See An Act on Choice of Law for Torts and Other Non-Contractual Obligations, 2009 Oregon Laws Ch. 451 (S.B. 561), OR. REV. STAT, [hereinafter ORS] §§ 31.850 to 31.890, effective January 1, 2010, available at http://ssrn.com/abstract=1529501.
24. The only other state to enact a comprehensive choice-of-law codification is the civil-law or "mixed jurisdiction" state of Louisiana, which has had a rich tradition of codification. The Louisiana conflicts codification was enacted into law by Act 923 of 1991, effective January 1, 1992, and now forms Book IV of the Louisiana Civil Code. For a discussion by its drafter, see, e.g., Symeon C. Symeonides, The Conflicts Book of the Louisiana Civil Code: Civilian, American, or Original?, 83 TUL. L. REV. 1041 (2009).
25. For discussion of the tort provisions of that codification, see Symeon C. Symeonides, Louisiana's New Law of Choice of Law for Tort Conflicts: An Exegesis, 66 TUL. L. REV. 677 (1992).
26. For a comprehensive discussion of the Act by its drafter, see Symeon C. Symeonides, Oregon's New Choice-of-Law Codification for Tort Conflicts: An Exegesis, 88 OR. L. REV. (forthcoming 2010), available at http://ssrn.com/ abstracts1529501.
27. The Act is accompanied by extensive, section-by-section explanatory comments, which accompanied the bill when it was introduced to the Legislature. They are posted on the web site of the Oregon Law Commission at http://www.willamette.edu/wucl/olc/groups/2007-2009/pdtfcoiulicts.sb561.report. 2009.pdf.
28. Gerhard Kegel, Paternal Home and Dream Home: Traditional Conflict of Laws and the American Reformers, 27 AM. J. COMP. L. 615, 616-17 (1979).
29. Another author has expressed this more eloquently. See Louise Weinberg, Theory Wars in the Conflict of Laws, 103 MICH. L. REV. 1631, 1650 (2005) ("Symeonides acts on the principle that what courts do, and their measure of agreement in what they do, are phenomena to be taken very seriously indeed⋯ [and] has the strong conviction that to glean truth from reality one has to handle a great deal of reality, and to do so with utmost care.").
30. Performance Food Group, Inc. v. Williams, 686 S.E.2d 437 (Ga. Ct. App. 2009), a case involving similar facts and the same issue, was decided in the same way by the same Georgia court. For a case reaching the opposite result under similar circumstances, see Cannon Cochran Management Services, Inc. v. Duncan, No. A08-0807, 2009 WL 982262 (Minn. Ct. App. Apr. 14, 2009) (holding that an Illinois employer's workers' compensation lien was enforceable in Minnesota against the proceeds of a settlement between an Illinois employee and a third party who injured him at a Minnesota accident).
31. See Peter Murray, The Privatization of Civil Justice, 15 WILLIAMETTK J. INT'L L. 8 Disp Resol. 133 (2007).
32. See official comments to this provision accompanying HB 2414 (2001) (Section 7 now codified as OH. REV. STAT. § 81.120), published in James A.R. Nafziger, Oregon's Conflicts Law Applicable to Contracts, 38 WILLAMETTE L. REV. 397, 420 (2002) (noting that the quoted provision "makes clear that the exercise of party autonomy within this Act extends only to contractual rights and duties of the parties and not to non-contractual rights and duties such as those arising out of the law of torts and property")
33. Symeon C. Symeonides, Oregon's Choice-of-Law Codification for Contract Conflicts: An Exegesis, 44 WILLAMETTE L. REV. 205, 223-26 (2007) (explaining the exclusion of non-contractual claims). The newly enacted (2009) codification for noncontractual claims provides that choice-of-law agreements for such claims are enforceable only if they are entered into after the parties had knowledge of the events giving rise to the dispute.
34. See Symeon C. Symeonides, Oregon's New Choice-of-Law Codification for Tort Conflicts: An Exegesis, 88 ORE. L. REV. (forthcoming 2010).
35. See Thomas, 573 F.3d at 1123 ("[U] nder the terms of the Arbitration Clause, [plaintiff] must arbitrate in the Philippines (choice-of-forum) under the law of Panama (choice-of-law). As the arbitrator is bound to effectuate the intent of the parties irrespective of any public policy considerations, these arbitration requirements have 'operated in tandem' to completely bar [plaintiff] from relying on any U.S. statutorily-created causes of action."). The court also distinguished this cases from Vimar Seguros y Reaseguros v. M/V Sky Reefer, 515 U.S. 528 (1995), because, unlike the situation in Vimar, it was unlikely in this case that an American court would have the opportunity to review the arbitration award.
36. In Panos v. Timco Engine Center, Inc., 677 S.E.2d 868 (N.C. Ct. App. 2009), a non-maritime case, the employment contract between a North Carolina employer and its employee who worked outside North Carolina contained a North Carolina choice-of-law clause. The employee sued the employer for violations of North Carolina's Wage and Hour Act. The court found that, despite the absence of words to that effect, the Act was not intended to apply extraterritorially to out-of-state employees working outside North Carolina, and that the choice-of-law clause could not stretch the Act's reach beyond North Carolina's borders.
37. For a detailed discussion of these two roles of public policy, see PETER HAY, PATRICK BORCHERS & SYMEON SYMEONIDES, CONFLICT OF LAWS §§ 3.15-3.16 and 18.4 (5th ed. 2010)
38. Symeon C. Symeonides, AMERICAN PRIVATE INTERNATIONAL LAW 83-85, 200-04 (2008).
39. OR. REV. STAT. § 12.430(1).
40. N.H. REV. STAT. ANN. § 508:9.
41. VA. CODE ANN. § 20-45.3 (West 2004).
42. For a collection of cases so holding, see SYMEON C. SYMEONIDES, AMERICAN PRIVATE INTERNATIONAL LAW 79 (2008).