法律相关英语-8-Governing-Law-and-Forum课件.ppt

1、UNIT 8UNIT 8Governing Law and Forum SelectionGoverning Law and Forum Selection8.00 INTRODUCTION1.In drafting a commercial contract,a prudent attorney should anticipate that dispute between the contracting parties may arise later in their relationship.2.If the parties choose litigation as their means

2、 of dispute resolution,the incorporation of governing law and forum selection into the contract would let the parties know at the inception of any dispute which forum it will be adjudicated and what body of substantive law will govern its resolution.3.In drafting such a clause,an attorney shouldanal

3、yze which jurisdiction would be most beneficial for his clientcarefully craft appropriate language to designate the desired forum and select the most favorable governing law.in case of multiple agreements being negotiated,ensure the consistency of such clause among related agreements.make it certain

4、 that the forum designation and governing law provisions at issue would be enforceable under certain jurisdictions laws 8.01 GOVERNING LAW PROVISIONS1.Governing Scope of the Chosen LawThe following are two examples of choice of law provisions.Example1 is a bare bones provision that,although often us

5、ed,raises multiple legal and business issues.Example 2 is a more detailed and refined provisions that addresses the issues raised by Example1.Example 1:The laws of the state of Vermont govern this Agreement.Example 2:The laws of the state of Vermont(without giving effect to its conflicts of law prin

6、ciples)govern all matters arising out of or relating to this agreement and all of the transactions it contemplates,including,without limitation,its validity,interpretation,construction,performance,and enforcement.Trial Translation:(see next page)8.01 GOVERNING LAW PROVISIONSExample 1:The laws of the

7、 state of Vermont govern this Agreement.“本协议”由佛蒙特州法律管辖。Example 2:The laws of the state of Vermont(without giving effect to its conflicts of law principles)govern all matters arising out of or relating to this agreement and all of the transactions it contemplates,including,without limitation,its vali

8、dity,interpretation,construction,performance,and enforcement.因“本协议”引起或与之有关所有事项以及“本协议”拟进行的全部交易（包括但不限于其效力，解释，履行及实施）由佛蒙特州法律管辖（不包括其冲突规则）。8.01 GOVERNING LAW PROVISIONSDesignation of Multiple JurisdictionThe parties may choose to have the law of one jurisdiction govern certain disputes arising under the c

9、ontract,and the law of a different jurisdiction apply to other issues.Such bifurcation is common in the real estate context.Example 3:The laws of the State of Ohio(without giving effect to its conflict of laws principles)govern all matters arising out of or relating to Section _ of this Agreement(in

10、cluding,without limitation,its interpretation,construction,performance,and enforcement);and the laws of the State of Kentucky govern all other matters arising out of or relating to this Agreement(including,without limitation,its interpretation,construction,performance,and enforcement).Comments:The s

11、tructure and language of this provision is similar to Example 2,except that it contains two subdivisions dealing with different matters that would subject to laws of different state.8.01 GOVERNING LAW PROVISIONSExample 3:The laws of the State of Ohio(without giving effect to its conflict of laws pri

12、nciples)govern all matters arising out of or relating to Section _ of this Agreement(including,without limitation,its interpretation,construction,performance,and enforcement);and the laws of the State of Kentucky govern all other matters arising out of or relating to this Agreement(including,without

13、 limitation,its interpretation,construction,performance,and enforcement).Trial Translation:因“本协议”引起或与之有关所有事项（包括但不限于其效力，解释，履行及实施）由俄亥俄州法律管辖（不包括其冲突规则）；因“本协议”引起或与之有关所有其它事项（包括但不限于其效力，解释，履行及实施）由肯塔基州法律管辖。8.01 GOVERNING LAW PROVISIONS2.Drafting in Accord with State Statues:Where the parties have chosen a pa

14、rticular states law in reliance upon that states statute governing the enforceability of choice of law provisions,the drafter needs to track the language used in the statute.For example,the parties electing New York law and relying on Section 5-1401 of the General Obligations Law can ensure the enfo

15、rceability of the provision by drafting as follows:The law of New York shall govern the rights and duties of the parties in whole or in part.各方权利和义务应全部或部分地由纽约州法管辖。Such provisions are insufficient to accomplish all the drafters objectives(eg.related torts,strictly contractual matters),so adding a pro

16、vision to that effect would be necessary.8.02 FORUM SELECTION PROVISIONS1.PermissiveA forum selection provision may permit the parties to select the forum of which they desire for litigation.However,it is also possible that the freedom of selecting is otherwise deprived by a different provision.The

17、following is a example provision permitting selection:8.02 FORUM SELECTION PROVISIONS1.PermissiveExample 4(a)Any party bringing a legal action or proceeding against any other party arising out of or relating to this Agreement may bring the legal action or proceeding in the United States District Cou

18、rt for the Northern District of Illinois or in any court of the State of Illinois sitting in Chicago.(b)Each party to this Agreement submits to the nonexclusive jurisdiction of(i)the United States District Court for the Northern District of Illinois and its appellate courts,and(ii)any court of the S

19、tate of Illinois sitting in Chicago and its appellate courts,for the purposes of all legal actions and proceedings arising out of or relating to this Agreement.Trial Translation8.02 FORUM SELECTION PROVISIONSaction or proceedingSome states,such as New York,distinguish between an action and a proceed

20、ing.Accordingly,to avoid inadvertently limiting the scope of the choice of forum provision,drafters should include in the provision any proceedings unique to a jurisdiction.New York procedural rules provide for a special proceeding as a quicker way to implement a right,but only when authorized by st

21、atute.Return8.02 FORUM SELECTION PROVISIONSarising out of or relating to As discussed previously,some courts have found that the phrase“arising under and relating to”implies a broader application than the phrase“arising under”.Thus,the former should be used when the parties intend the forum selectio

22、n provision to apply to all related matters,not just contractual disputes.A second option is to enumerate the types of actions the provision will cover:Any legal proceeding against any other party arising out of this agreement(whether in contract,tort,equity or otherwise)In either event,the drafter

23、should use the same language in choice of law and forum selection provisions,as well as in the forum waiver provision.Return8.02 FORUM SELECTION PROVISIONSIn Chicago The choice of forum provision should specify which court is intended,rather than simply mentioning a geographic location(such as Illin

24、ois).Such specificity will avoid ambiguity in determining whether the parties intended the action to be brought only in the state court of the designated state,in the federal district court of the relevant state,or in either location.The drafter should remember not to designate a federal court as th

25、e only permissible forum because the court may not have federal subject matter jurisdiction based on federal subject matter ground.In this example,the party bringing an action may choose between either the federal court in the Northern District of Illinois or the Illinois state court sitting in Chic

26、ago.Return8.02 FORUM SELECTION PROVISIONSthe nonexclusive jurisdictionThe specific use of the word“nonexclusive”makes clear that the submission to jurisdiction is part of a permissive choice of forum provision.Return8.02 FORUM SELECTION PROVISIONSTrial TranslationExample 4(a)Any party bringing a leg

27、al action or proceeding against any other party arising out of or relating to this Agreement may bring the legal action or proceeding in the United States District Court for the Northern District of Illinois or in any court of the State of Illinois sitting in Chicago.任何一方针对另一方的，因“本协议”引起或与之有关的任何诉讼或法律

28、程序可由该方向伊利诺伊北部地区的联邦地区法院或位于芝加哥的任何伊利诺伊州州法院提起。8.02 FORUM SELECTION PROVISIONSExample 4(b)Each party to this Agreement submits to the nonexclusive jurisdiction of(i)the United States District Court for the Northern District of Illinois and its appellate courts,and(ii)any court of the State of Illinois si

29、tting in Chicago and its appellate courts,for the purposes of all legal actions and proceedings arising out of or relating to this Agreement.(b)“本协议”每一方均服从下列法院对因“本协议”引起或与之有关的任何诉讼或法律程序行使非专属管辖权：i)伊利诺伊北部地区的联邦地区法院及其上诉法院，以及ii)位于芝加哥的任何伊利诺伊州州法院及其上诉法院。8.02 FORUM SELECTION PROVISIONS2.Mandatory/ExclusiveIn a

30、ddition to increasing predictability,exclusive forum selections also provide uniformity for parties contracting in many different states.For example,a large corporation,which negotiates similar contracts throughout the country,might prefer an exclusive forum selection to improve the chances that all

31、 litigation will occur in one jurisdiction.If coupled with a choice of law provision,the combination would also provide uniformity in the body of law that will govern the agreements.8.02 FORUM SELECTION PROVISIONS2.Mandatory/ExclusiveExample 5(a)Any party bringing a legal action or proceeding agains

32、t any other party arising out of or relating to this Agreement shall bring the legal action or proceeding in the United States District Court for the Northern District of Illinois or in any court of the State of Illinois sitting in Chicago.(b)Each party to this Agreement consents to the exclusive ju

33、risdiction of(i)the United States District Court for the Northern District of Illinois and its appellate courts,and(ii)any court of the State of Illinois sitting in Chicago and its appellate courts,for the purposes of all legal actions and proceedings arising out of or relating to this Agreement or

34、the transactions it contemplates.(c)Each party agrees that the exclusive choice of forum set forth in this Section does not prohibit the enforcement of any judgment obtained in that forum or any other appropriate forum.Trial Translation8.02 FORUM SELECTION PROVISIONSComments on the clauseAs with the

35、 nonexclusive forum selection provision,each subsection serves a different purpose.Again,Subsection(a)focuses on the parties in their capacity as plaintiffs;Subsection(b)focuses on the their roles as defendants;There are,of course,additional overlaps.Return8.02 FORUM SELECTION PROVISIONSEach party t

36、o this AgreementWhere most forum selection provisions are binding on both parties,occasionally the provision limits only one party.In the banking context,loan agreements sometimes compel borrowers to bring all actions in specific jurisdictions,but place no such restrictions on the bank.In addition,c

37、ourts have enforced these unilateral provisions in other contexts as wellprovided there is no indication that one party lacked sufficient bargaining power or that the provision was not negotiated freely.Unilateral provisions also may arise in contracts between contractors and property owners.For exa

38、mple:No action or proceeding shall be commenced by Contractor against Owner except in the Supreme Court of the State of New York,County of New York.Trial Translation:“承包商”仅得向位于纽约郡的纽约州最高法院针对“业主”提起诉讼。Return8.02 FORUM SELECTION PROVISIONSThe exclusive jurisdictionA two-pronged approach is necessary to

39、draft a mandatory forum selection provision.In the first subsection,to create the obligation to bring all actions in a specific jurisdiction,the word“shall”is used.The use of“shall”by itself in this context is not,however,sufficient as some courts have viewed such provisions as permissive.Therefore,

40、in tandem with the use of“shall”,the drafter should insert“exclusive”in the second subsection,indicating that in their roles as prospective defendants,the parties consent to the exclusive jurisdiction of the courts enumerated in the prior subsection.Return8.02 FORUM SELECTION PROVISIONSPurpose of Su

41、bsection(c)The purpose of subsection(c)is to preclude a defendant from arguing that subsection(b)renders unenforceable a judgment obtained against the defendant in another jurisdiction.8.02 FORUM SELECTION PROVISIONSTrial TranslationExample 5(a)Any party bringing a legal action or proceeding against

42、 any other party arising out of or relating to this Agreement shall bring the legal action or proceeding in the United States District Court for the Northern District of Illinois or in any court of the State of Illinois sitting in Chicago.一方针对另一方的，因“本协议”引起或与之有关的任何诉讼或法律程序，应当向伊利诺伊北部地区的联邦地区法院或位于芝加哥的任何伊

43、利诺伊州州法院提起。8.02 FORUM SELECTION PROVISIONSExample 5(b)Each party to this Agreement consents to the exclusive jurisdiction of(i)the United States District Court for the Northern District of Illinois and its appellate courts,and(ii)any court of the State of Illinois sitting in Chicago and its appellate

44、 courts,for the purposes of all legal actions and proceedings arising out of or relating to this Agreement or the transactions it contemplates.(b)“本协议”每一方同意下列法院对因“本协议”引起或与之有关的任何诉讼或法律程序或者“本协议”拟定的交易行使专属管辖权：i)伊利诺伊北部地区的联邦地区法院及其上诉法院，以及ii)位于芝加哥的任何伊利诺伊州州法院及其上诉法院。8.02 FORUM SELECTION PROVISIONSExample 5(c)E

45、ach party agrees that the exclusive choice of forum set forth in this Section does not prohibit the enforcement of any judgment obtained in that forum or any other appropriate forum.(c)每一方均同意本条中所规定的专属管辖并不禁止一方所取得的判决在该审判地或任何其它适当的审判地予以执行。8.02 FORUM SELECTION PROVISIONS3.PriorityThe exclusive forum sele

46、ction provision above treats the federal and state courts equally:A plaintiff may choose either forum.Occasionally,however,the parties may prefer the federal courts over the state courts.In redrafting the provision to take that preference into account,drafters should remember that the parties cannot

47、 confer federal subject matter jurisdiction.Consequently,drafters should not designate the federal courts as the only available forum.The provision should establish a priority.Example 6(a)Any party bringing a legal action or proceeding against any other party arising out of or relating to this Agree

48、ment shall bring the legal action or proceeding(i)in the United States District Court for the Northern District of Illinois or;(ii)in any court of the State of Illinois sitting in Chicago,if there is no federal subject matter jurisdiction.8.02 FORUM SELECTION PROVISIONS3.PriorityExample 6(a)Any part

49、y bringing a legal action or proceeding against any other party arising out of or relating to this Agreement shall bring the legal action or proceeding(i)in the United States District Court for the Northern District of Illinois or;(ii)in any court of the State of Illinois sitting in Chicago,if there

50、 is no federal subject matter jurisdiction.Trial Translation (a)一方针对另一方的，因“本协议”引起或与之有关的任何诉讼或法律程序，应当向下列法院提起：(i)伊利诺伊北部地区的联邦地区法院或；(ii)若不存在联邦法院标的管辖权，则为位于芝加哥的任何伊利诺伊州州法院。8.02 FORUM SELECTION PROVISIONS4.Waiver of the Forum Non Convenience ProvisionAlthough one might assume that agreeing to an exclusive ju