Paul: I am sorry if I did not express myself correctly but this is not exactly what I meant, to the contrary: I think that the choice of law clause would be given effects, but that there would be an issue of compatibility (and interpretation) between certain clauses in the contract and the way they are drafted (i.e. according to US law) and any other eventual governing law, especially if such governing law also includes elements of EU law. Mike: as far as I understand the RA, it is specified that the arbitration is to "occur" in LA, which I understand as meaning that both the seat and the actual physical location of the arbitration proceedings is LA. In that sense I do not see any choice of venue, but an imposed venue that is California and more specifically LA. But did I read that wrongly and/or are you saying something else? Jorge: thank you for your replies. I think we mostly agree as far as choice of venue is concerned. As for the governing law, I also get your point that there are some super-mandatory provisions of EU law, for example, which apply to any agreement to which a EU natural or legal person is party. These apply anyway, whichever governing law is chosen. Maybe the language of the RA could better reflect this reality though, but inserting such a clause would certainly be an American legal reflex and not a civil law one ;) belt and suspenders! I also understand your idea to increase flexibility by making categories of contract provisions and then having different rules apply to these, but I must say that I do not see this as a viable option. In my view this would lead to a lot of interpretation troubles because obligations are often related to each other. I would rather go with a "menu" (the choice applying to the *whole *contract) and run the risk, to some extent, to have some provisions of the RA "knocked out" of it by mandatory provisions of say French or Swiss and eventually EU law than start dividing up the contracts into parts and have different laws apply to these parts. However as Milton and Paul point out, there is a problem with the menu which is that of uniform application all over the world. Some registries would "benefit" or "suffer" from a different in terms of substance by choosing a different governing law in the menu. 2017-09-13 16:21 GMT+02:00 Mueller, Milton L <milton@gatech.edu>:
Very interesting post Paul. But, are you agreeing or disagreeing with the "menu" being based on regions? If you are agreeing, then how do we avoid this problem:
And we cannot, from an accountability perspective, want a world in which there are inconsistent results and how a contract provision is enforced depends on whether the suit is brought in Europe or in Asia. That type of uncertainty is also the enemy of accountability. Thus, I disagree with the submission that the presumption should be that the law of the registry apply to the agreement. That way lies chaos.
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