Vanderbilt Journal of Transnational Law

First Page



An opinion delivered as a condition precedent to the effectiveness of an agreement serves the purpose of assuring the opinion recipient of the correctness of the legal assumptions on which he bases his decision whether or not to enter into the agreement. In case of a transborder agreement, the laws of more than one country apply to various aspects of the transaction even if the agreement contains an express governing law clause, and the opinions of lawyers from the relevant countries must, if read together, cover all important legal issues. On the other hand, each lawyer must limit his opinion to his law and with respect to issues governed by other laws either remain silent, make certain assumptions or rely on a foreign lawyer's opinion.

The United States bar has only in recent years begun to think about and question the time-honored language used by United States lawyers in their opinions.' Little thought has been given to the explanation and justification of the language customarily requested by United States lawyers from foreign counsel involved in an international transaction. Foreign counsel has usually been requested to give opinions which follow the traditional United States practice. This practice is questionable in the case of opinions rendered on agreements governed by a law other than the law of the lawyer rendering the opinion.

This article suggests that the foreign lawyer should clearly state the issues which are to be determined under his law and which are covered by his opinion. In particular, he should not opine that an agreement which is governed by a law other than his law is "legal, valid and binding"; he should only opine that the governing law clause in the agreement is effective under his law.