Version History: Conflict of Laws (Jonny’s)

Version 1.4 updated to 1.5 on December 12, 2013. Paragraph 9 added:

“If a claim is not made against any person, and either (a) it is not possible to identify any person most likely to be affected by the judgment on the claim, or (b) if such person can be reliably identified, it is not possible to ascribe adoption of any voluntary law to the person, the adjudicating forum shall apply the law adopted by any juror thereof.”

Version 1.3 updated to 1.4 on December 2, 2013. Paragraph 3(a) revised to substitute “claimant” for “plaintiff.”  The following sentence is added to the end of Paragraph 3(c):

“Notwithstanding the foregoing, if applying the claimant’s affirmative defense of least liability would result in less liability than would result from applying the law of greatest liability with respect to affirmative defenses that is apparently adopted by the defendant at or after the relevant time, the forum shall apply defendant’s law of greatest liability regarding affirmative defenses.”

Version 1.2 updated to 1.3 on November 13, 2013.  Paragraph 3(d) is deleted.  Paragraphs 3(a) and 3(c) are revised as follows:

3.Rules of Reciprocity

(a) If the parties to a claim or counterclaim have not agreed on the substantive law to be applied prior to adjudication, the adjudicating forum shall apply the law of greatest liability that is apparently adopted by the defendant of the claim or counterclaim, respectively, at or after the relevant time.  If no such law apparently adopted by the defendant can be determined, the adjudication shall be stayed until such law is determined adjudicating forum shall apply the law of least liability apparently adopted by the claimant of the claim or counterclaim, respectively, at or after the relevant timeNotwithstanding the foregoing, if applying the defendant’s law of greatest liability would result in greater liability under the claim or counterclaim than would result from applying the law of least liability that is apparently adopted by the plaintiff at or after the relevant time, the forum shall apply the plaintiff’s law of least liability.

(c) If a defendant raises an affirmative defense to a claim or counterclaim, the adjudicating forum shall judge the applicability and effectiveness of the affirmative defense according to the law of least liability apparently adopted by the claimant of the claim or counterclaim, respectively, at or after the relevant time.  If no such law can be determined, the forum shall judge the applicability and effectiveness of the affirmative defense according to the law of greatest liability apparently adopted by the defendant at or after the relevant time.

(d) If no such laws apparently adopted by the defendant or the claimant can be determined, and the parties have not otherwise agreed to adopt a law for resolving the dispute, the adjudicating forum shall apply the law apparently adopted by itself just prior to receiving claimant’s first request for adjudication of the claim.

Version 1.1 updated to 1.2 on October 17, 2013.  Paragraph 4 revised by addition of the following sentence: “Any act purporting to adopt the law of a state is a nullity.”

Version 1.0 Published August 2013 Superseded by v. 1.1 September 4, 2013:

1. The parties (persons or collective entities) to a claim may, by mutual agreement, choose the law (procedural or substantive) to be applied for adjudication of the claim, the forum by which the claim will be adjudicated, or both, at any time prior to the adjudication.

2.The procedural law for an adjudication shall be selected by the adjudicating forum, unless the parties to the claim have by mutual agreement selected otherwise.

3. If the parties to a claim have not agreed on the substantive law to be applied prior to adjudication, the adjudicating forum shall apply the law of greatest liability that is apparently adopted by the defendant at or after the relevant time, regardless of whether the defendant has made a counterclaim.  If no such law apparently adopted by the defendant can be determined, the adjudicating forum shall apply the law of least liability apparently adopted by the claimant at or after the relevant time.  The relevant time shall be that instant just prior to the earliest unforced (voluntary) action of the defendant giving rise to the claim.   If no such laws apparently adopted by the defendant or the claimant can be determined, the adjudicating forum shall apply the law apparently adopted by itself just prior to receiving claimant’s request for adjudication of the claim.

4. A party to a claim shall be deemed to have apparently adopted a law for adjudication of a claim if the party has made a clear statement adopting the law that is actually or constructively received by the adverse party to the claim.

Commentary (Variant ‘A’ does not recognize territorial adoption of law per se, although choosing to enter a property may be interpreted as agreeing to application of a certain law for resolution of all claims arising thereon, depending on the conditions under which the entry was made)

5. A party shall be deemed to have constructively received an adverse party’s clear statement adopting the law only if the clear statement has been maintained in a registry accessible to the party, which registry the party knew or should have known of, for a reasonable period of time prior to the statement being deemed constructively received.

6.  The law of greatest liability is that law that, when applied to the claim at hand, results in the greatest amount of liability for the defendant, including punitive damages.

7. The law of least liability is that law that, when applied to the claim at hand, results in the least amount of liability for the defendant, including punitive damages.

8. If the parties to a claim have not agreed on a forum by which the claim will be adjudicated, the claimant may, upon reasonable prior notice to defendant, bring the claim in any competent forum reasonably convenient to the defendant’s residence at or after the relevant time or to any place at which an unforced action of the defendant giving rise to the claim was performed.

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  1. Pingback: Affirmative Defenses: The Difficult Choice | Voluntary Law Development Association

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