Professor Borchers maintains that United States conflict of laws rules regarding contracts have long had an international character. This Article reviews the development of contractual conflicts law and examines how, through Joseph Story's treatises, the United States law in this area assumed an international perspective.
These international influences have played and will increasingly play an important role in the development of U.S. contractual conflicts rules. This influence can be seen in both choice-of-forum and choice-of-law agreements. Both have been upheld by U.S. courts initially in international cases, which presented starker contrasts in choice of law or choice of forum. Once courts accepted these clauses in international cases, they soon extended these principles to domestic cases as well.
While contractual conflicts law has been accepted in the United States, the extent of its acceptance has not been exactly the same as in other states. Limitations imposed on party autonomy have been the focus of discussion in the revision to the Uniform Commercial Code, Section 1-105. The author endorses a liberal view on party autonomy: his approach of conflicts pragmatism suggests that commercial activities may play a role in defining legal rights and duties. He therefore concludes that parties should not be limited in choosing the law that they want applied to resolve any dispute to those states having a relation to their transaction. Given the particular importance of choice of law in international transactions, where each party may fear the application of the others' law, allowing parties to choose the law of a neutral forum that has no relation to the transaction may be more important. Moreover, the author suggests that law developed by private institutions, such as the UNIDROIT Principles, may offer parties a neutral, superior body of law that developed through consensus.
Patrick J. Borchers,
The Internationalization of Contractual Conflicts Law,
28 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol28/iss3/6