Choice of Law and Time Part II: Choice of Law Clauses and Changing Law

Abstract

Modern choice of law usually honors the parties’ contractual choice of governing law. But what happens when the law selected by the parties changes between the time of their contracting and the time of litigation? Or what if the law of the state whose law would otherwise apply changes so that its policy is now offended by the choice of law clause although its policy was not violated at the time the parties agreed? These questions raise the often-overlooked temporal aspect of choice of law. Should courts regard the law to be applied as fixed to the time of the transaction or as changeable over time? The answers to these problems are influenced by several factors: The proper concern for current state policy; the expectations of the parties; and whether the new law invalidates a previously valid transaction or, alternatively, makes valid a previously invalid one.

Keywords: choice of law, conflict of laws