Can private actors utilize choice-of-law clauses selecting the laws of a foreign country to avoid laws enacted by the United States? In this post, I argue that the answer is a qualified yes. I first examine situations where the U.S. laws in question are not mandatory. I then consider scenarios where these laws are mandatory. Finally, the post looks at whether private parties may rely on foreign forum selection clauses and foreign choice-of-law clauses—operating in tandem—to avoid U.S. law altogether. Read more
https://conflictoflaws.net/News/2020/08/CoL_Banner-1.png00John Coylehttps://conflictoflaws.net/News/2020/08/CoL_Banner-1.pngJohn Coyle2025-09-24 15:46:332025-09-24 15:53:45Using Foreign Choice-of-Law Clauses to Avoid U.S. Law
It is widely recognized that choice of court and choice of law agreements are powerful tools for structuring and planning international dispute resolution. These agreements play an important role in “increasing legal certainty for the parties in cross-border transactions and reducing incentives for (the harmful version of) forum shopping.” (Alex Mills, Party Autonomy in Private International Law (CUP, 2018) p. 75). However, the realization of these objectives depends on the enforcement of the parties’ choice. Unfortunately, general practice in the MENA (North Africa and the Middle East) region shows that, with a few exceptions, the status quo is far from satisfactory. Choice-of-court agreements conferring jurisdiction on foreign courts are often disregarded or declared null and void. Similarly, the foreign law chosen as the governing law of a contract is often not applied because of the procedural status of foreign law as a matter of fact, the content of which must be ascertained by the party invoking its application. The recent judgment of the High Court of Bahrain (a first instance court in the Bahraini judicial system) in the Case No. 2/13276/2023/02 of 17 January 2024 is nothing but another example of this entrenched practice that can be observed in the vast majority of countries in the region.
https://conflictoflaws.net/News/2020/08/CoL_Banner-1.png00Béligh Elbaltihttps://conflictoflaws.net/News/2020/08/CoL_Banner-1.pngBéligh Elbalti2024-02-23 05:27:312024-02-23 14:57:45Bahraini High Court on Choice of Court and Choice of Law Agreements
