In a 2016 article in the Weils Private Equity Insights blog, it was suggested that agreement professionals and their advisor should not only “choose the right with caution, but also choose in depth!”  This proposal was an attempt to emphasize the importance of the actual language used in the legal choice clauses contained in the various provisions on the back of most AM agreements. And a recent ruling by Vice-Chancellor Slights before the Delaware Court of Chancery offers another opportunity to back up this proposition.  Therefore, in the development of the applicable law clause, it is worth considering whether it should be limited to the agreement itself or whether it should be renewed to cover other non-contractual obligations related to the contract.7 There is currently no clear authority as to the effectiveness of such a clause under English law in determining the law governing the non-contractual obligations of the parties. In the light of Rome II, this position has changed. A recent article by Professor John Coyle, published in the Washington Law Review, examines in depth the approaches of different national and federal jurisdictions to the interpretation of legislation.  The article is a wealth of information for practising lawyers. However, the most important contribution of this article is that it is not necessary to understand the divergent approaches of the courts in interpreting the standard variety selection clause when the authors of the decision-making method, instead of continuing to rely on a clause, have effectively developed the choice clause of the law to cover all the issues that lead to the different approaches of those jurisdictions. And he even proposed a clause that seems to close any questions about the application of procedural law, material law and contractual and non-contractual rights.  If they have not already experienced the problem, customers probably do not even know that a contract can choose the applicable law.
Why would they? And even if they did, they rely on lawyers to tell them what is the most advantageous state right. Clients may be more interested in choosing the forum than choosing the administration of justice – but they may not understand the difference between the two unless explained. If the contract goes wrong and the dispute ends at the hearing, the client cannot pay much attention if the applicable law is that of another state, but the client is much more unfortunate if the dispute is to take place in a remote location, with all the inconveniences and associated costs (including the maintenance of local legal assistance). This short article just scratched the surface – out of necessity, a lot of things were omitted. The law in this area is complex, even chaotic, and the rules vary from jurisdiction to jurisdiction.