Conflict of Laws

Question 1

Contract Conflict of Laws

Answer 1

Rule of party autonomy: parties are free to choose the law that will govern the contract with few exceptions.

Exception: the VALIDITY of the contract cannot be resolved solely by the parties’ choice of law

When deciding how to resolve what law controls VALIDITY, the significant relationship test is applied, which looks to 5 factors:

1. place of contracting
2. place of negotiations
3. place of performance
4. location of the subject matter of the contract
5. domicile/residence/nationality/incorporation/PPB of the parties

The presumption is that the place of negotiation and performance, if they are the same, will control.

Question 2

Conflict of Law Analysis (Michigan)

Answer 2

Michigan law will apply unless there is a rational reason to do otherwise.

If there is a rational reason there is a two step analysis:

1. do any foreign states have an interest in having their law applied
   - no foreign interests –> irrefutable presumption that Michigan law controls
   - foreign interest –> step 2
2. do Michigan’s interests mandate that Michigan law will be applied DESPITE the foreign state’s interest
   - place where injury occurred
   - place where conduct causing injury occurred
   - domicile/residence/incoproation/ppb of parties
   - place of relationship between parties (if any relationship)

Question 3

Borrowing statute

Answer 3

If the statute of limitations is implicated:

A nonresident brings suit in Michigan on an action accruing outside of Michigan, then Michigan’s or the other state’s SOL applies

A resident brings suit in Michigan on a cause of action accruing outside of Michigan, then ONLY Michigan SOL applies

Question 4

When does a state have an interest in applying its laws

Answer 4

conduct-regulating laws: wrongful conduct occurs within territory OR causes injury there OR when a domiciliary is injured anywhere

Loss-Shifting laws: application benefits a state domicilary

Question 5

Renvoi

Answer 5

Renvoi is the application of the WHOLE law of another state, including that state’s choice of law rules.

Michigan rejects the renvoi unless the subject of litigation is real property in another state - then renvoi MIGHT be accepted.

Question 6

Depecage

Answer 6

Depecage describes the application of different states’ laws to different issues within the same case.

Michigan practices depecage when the analysis of a state’s interest in applying its laws for each issue requires that distinction.

Question 7

Tort Conflict of Law

Answer 7

Tort conflict of law begins with the standard conflict of law analysis (the presumption that Michigan law applies unless there is a greater interest)

Tort law emphasizes the purpose and policies underlying the competing tort statutes in its interest analysis.

Factors considered for the greater interest in tort actions:

1. place of injury
2. place of tortious conduct
3. domicile of parties
4. place of relationship (if any) between the parties

Question 8

UCC Choice of law

Answer 8

The UCC choice of laws rules applies when dealing with tangible, movable property.

UCC allows parties to choose which law governs. If the parties have not chosen, then the courts will apply the forum’s version of the UCC.