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Re: choice of law clauses and GPL


From: Alan Mackenzie
Subject: Re: choice of law clauses and GPL
Date: Thu, 20 Aug 2009 22:26:26 +0000 (UTC)
User-agent: tin/1.6.2-20030910 ("Pabbay") (UNIX) (FreeBSD/4.11-RELEASE (i386))

John Hasler <address@hidden> wrote:
> Alan Mackenzie writes:
>> 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.

> I wrote:
>> SCO.

> Alan Mackenzie writes:
>> Answering reasonable questions with meaningless obscenities isn't
>> helpful.  You can do better than this.

> You asked for examples.  I gave you one.

<sigh>  I was asking for an example of an instance of a court in one
legal system adjudicating a dispute governed by some other legal system.

I wasn't asking for an example of a company name, or of a cartoon
character, or of a shoe size.

You gave me the name of a company.  A company is not an instance of
a legal adjudication.

> All of SCO's suits involved choice of law.

Well, even if the required example had been one involving choice of law
(it wasn't) a company still isn't a choice of law dispute.  It's a
company.

> The Utah Federal District Court applied California and
> New York law.  The Nevada Federal District Court applied California
> law.  The Michigan court applied California law.

OK.  I'm a bit sceptical, but I'll accept it for the sake of argument.
Are you saying that if I was a consumer living in Utah, and a large
company (say, a telephone company) was suing me for non-payment under
a contract governed by Californian law, the court case would be judged
in my local Utah court?

But all these law systems are sort of subsets of some (?notional) USA
law, so they're a bit of a non-general case.

> The Swiss arbitration panel applied US law (I don't recall which
> state).

Did it?  But the arbitration panel isn't a court.

> As Tim pointed out, .....

No, Tim hasn't "pointed out".  He's made bare assertions as yet
unsubstantiated.  The usage "point out" implies something accepted as
fact.

> .... "choice of law" applies only to the interpretation of the license.

>  The court applies its local rules of procedure and evidence.

These are part of the system of law.

> For an experienced lawyer or judge learning enough of the law of a new
> jurisdiction to interpret a contract is like an experienced programmer
> learning enough of a new programming language to understand a program
> written in it.

Really?  So our friend Judge Kimball in Utah could just read up on
German law, could he?  Let's assume he can't read German; so he's
dependent on some sort of translation, which is going to contain errors.
Or he's going to be depending on advice from a translator, in which
case he wouldn't really be the judge at all, the translator would.  You
can certainly appreciate that German law contains phrases which have
conventional rather than literal meanings.  Even everyday German has
words with several equivalents in English, and sets of distinct words
which translate to single English words.

The whole idea barely passes the absurdity test.

So, where's this example of a case where a court has adjudicated a
matter governed by an alien legal system, where the two systems have
no jurisdictional connection (such as two states in the USA)?

-- 
Alan Mackenzie (Nuremberg, Germany).



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