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Re: choice of law clauses and GPL


From: Tim Smith
Subject: Re: choice of law clauses and GPL
Date: Wed, 19 Aug 2009 19:11:41 -0700
User-agent: MT-NewsWatcher/3.5.3b2 (Intel Mac OS X)

In article <address@hidden>, Alan Mackenzie <address@hidden> 
wrote:
> > Note that a choice of law clause doesn't mean that any disputes must
> > be litigated in the courts of the jurisdiction whose law is specified.
> 
> Doesn't it?  I think you're wrong here.  How can a Saudi Arabian court
> adjudicate a case under Canadian law, for example?  Who's going to be
> the judge?  Who's going to be qualified to act as an advocate?  Closer
> to home, Scottish courts don't adjudicate English law, and this places
> consumers living in Scotland at a massive disadvantage, since any legal
> action against large companies which typically mandate English law (e.g.
> rogue telecoms companies like Deutsche Telekom UK) must be litigated
> abroad.
> 
> > The courts of one state or country are willing and able to apply the
> > law of another state and country when handling a contract or license
> > case.
> 
> You seem to be saying that this is a general, customary thing, applicable
> to just about any pair of countries and their legal systems.
> 
> I believe you're wrong here, too.  It just sounds absurd.  Judges and
> lawyers are only trained to operate under their own respective legal
> systems.  Please back up your assertion with something solid, say
> examples.

You can start here if you want to know more about how choice of law 
works:

   <http://en.wikipedia.org/wiki/Choice_of_law>

It can get complicated. There was a case we studied in law school where 
a lawsuit was in state X, and the choice of law rules for X determined 
that the law of state Y applied. However, the choice of law rules in Y 
said that the law of Z applied. Furthermore, the particular issue was 
one that had not been decided by the high court of Z.

Anyway, the judges in X had to figure out what they thought Y's high 
court would decide, if Y's high court had occasion to figure out what 
they thought Z's high court would decide if confronted with the issue!

As to how it works. The court in jurisdiction X decides what law 
applies. For some kinds of cases, such as torts, there will be a choice 
of law statute in X that resolves this. For contracts, it might be 
specified in the contract. If X determines that Y's law applies, that 
doesn't mean ALL of Y's law applies.

The court will use X's rules of civil procedure. It will use X's 
evidentiary rules.

Basically, in a contract case, specifying the law of jurisdiction Y 
essentially just means that the parties are agreeing to Y's rules for 
interpreting the contract. I see nothing in that that conflicts with the 
GPL.

Don't confuse a choice of law clause with a choice of venue clause. The 
later specifies the jurisdiction in which lawsuits must be brought.


-- 
--Tim Smith


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