Temporal Choice-of-Law Clauses

12 Pages Posted: 30 Aug 2022 Last revised: 21 Aug 2023

See all articles by John F. Coyle

John F. Coyle

University of North Carolina School of Law

Date Written: August 24, 2022

Abstract

When a choice-of-law clause selects the “laws” of a particular jurisdiction, it is not always clear whether it operates to select those laws (1) as they existed at the time the contract was signed, or (2) as they exist at the time of the litigation. When the choice-of-law clause is silent on this issue—as it almost always is—the court must craft an interpretive default rule that reflects majoritarian preferences relating to choice of law and time.

This Essay argues that courts should interpret the word "laws" to select the laws of the chosen jurisdiction as they exist at the time of litigation. It refers to this interpretive rule as the canon of evolving law. This canon makes it unnecessary for a court to engage in the costly project of determining the content of a body of law at a fixed date in the past. It is consistent with the preferences of most contracting parties as revealed in published decisions. It aligns with the views of most scholars. And it recognizes that most contract drafters do not conduct extensive research into the laws of the chosen jurisdiction before writing a choice-of-law clause into their agreements.

Suggested Citation

Coyle, John F., Temporal Choice-of-Law Clauses (August 24, 2022). UNC Legal Studies Research Paper No. 4199603, Available at SSRN: https://ssrn.com/abstract=4199603 or http://dx.doi.org/10.2139/ssrn.4199603

John F. Coyle (Contact Author)

University of North Carolina School of Law ( email )

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919-843-9634 (Phone)

HOME PAGE: http://www.law.unc.edu/faculty/directory/coylejohnf/

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