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Re: choice of law clauses and GPL

From: Tim Smith
Subject: Re: choice of law clauses and GPL
Date: Thu, 20 Aug 2009 18:40:48 -0700
User-agent: MT-NewsWatcher/3.5.3b2 (Intel Mac OS X)

In article <h6kiii$cp8$>, Alan Mackenzie <> 
> > The Utah Federal District Court applied California and
> > New York law.  The Nevada Federal District Court applied California
> > law.  The Michigan court applied California law.
> OK.  I'm a bit sceptical, but I'll accept it for the sake of argument.
> Are you saying that if I was a consumer living in Utah, and a large
> company (say, a telephone company) was suing me for non-payment under
> a contract governed by Californian law, the court case would be judged
> in my local Utah court?

The phone company could file the suit in any jurisdiction in which the 
court has personal jurisdiction over you. That would include Utah if you 
lived there. It might include other jurisdictions, but for a typical 
consumer probably would only include the jurisdiction in which they live.

And yes, the case would in Utah court if they filed there. The rules of 
discovery, the rules of evidence, and other procedural matters would 
follow Utah's rules of civil procedure.

The choice of law clause comes into play in determining the meaning of 
the contract. For instance, suppose you tried to terminate the contract, 
and the suit is over whether or not that termination is effective. The 
contract text isn't clear on how notice of termination is to be made. 
The Utah court would look to California contract law to see what methods 
are acceptable for termination notice.

This is a routine thing in contracts cases. I don't know why you find it 
so surprising.

> But all these law systems are sort of subsets of some (?notional) USA
> law, so they're a bit of a non-general case.

There isn't really any national contract law in the US. Perhaps the best 
way for a European to think of it is that US states are a lot like 
European countries, and the United States is a lot like the EU.

> > For an experienced lawyer or judge learning enough of the law of a new
> > jurisdiction to interpret a contract is like an experienced programmer
> > learning enough of a new programming language to understand a program
> > written in it.
> Really?  So our friend Judge Kimball in Utah could just read up on
> German law, could he?  Let's assume he can't read German; so he's
> dependent on some sort of translation, which is going to contain errors.
> Or he's going to be depending on advice from a translator, in which
> case he wouldn't really be the judge at all, the translator would.  You
> can certainly appreciate that German law contains phrases which have
> conventional rather than literal meanings.  Even everyday German has
> words with several equivalents in English, and sets of distinct words
> which translate to single English words.
> The whole idea barely passes the absurdity test.
> So, where's this example of a case where a court has adjudicated a
> matter governed by an alien legal system, where the two systems have
> no jurisdictional connection (such as two states in the USA)?

Ask a German lawyer. Or go to a German law school and ask a student 
there, who will be able to give dozens of cases easily.

--Tim Smith

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