John Coyle, ‘The Canons of Interpretation for Choice-Of-Law Clauses’

Choice-of-law clauses present unique interpretive challenges for courts. They are typically boilerplate provisions that are borrowed from other agreements. They are often not negotiated other than to select the jurisdiction whose law is to govern. And they are often poorly drafted. In light of this provenance, it is not clear that the text of the typical choice-of-law clause provides a particularly reliable guide to what the parties ‘intended’ with respect to any issue other than the identity of the governing jurisdiction. Nevertheless, courts called upon to resolve disputes arising out of a contract containing a choice-of-law clause must give effect to the parties’ intent by interpreting the words contained in that clause. In order to assist in this task, the courts have developed a number of interpretative canons that apply exclusively in the context of choice-of-law clauses. These canons play an enormously influential role in determining the meaning of these clauses and, by extension, the law that will applied to resolve disputes that come before the courts. These interpretive rules have attracted scant attention in the legal literature to date. This Article aspires to fill that gap by (1) providing a taxonomy of these canons, and (2) exploring the ways in which they have been used by courts throughout the United States.

Coyle, John F, The Canons of Interpretation for Choice-Of-Law Clauses (June 6, 2016).

First posted 2016-06-08 09:30:53

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