Defenses to Choice of Law

Question 1

What are the two main defenses to Choice of Law?

Answer 1

1. Public Policy: A forum court will not apply a law that is against its own fundamental public policy.
2. Procedural Rules: Regardless of the outcome of the choice of law analysis, the forum court will always apply its own procedural rules.

Question 2

Is a Statute of Limitations considered procedural or substantive?

Answer 2

The general rule is that statues of limitations have been viewed as procedural.

Exceptions

• Borrowing Statutes: Borrowing statutes direct a court to look at both the forum limitations period and the foreign limitations period (in cases where foreign law governs under a normal choice of law analysis) and then to usually apply the shorter period.
• Limitations that Condition a Substantive Right: If the normal choice of law analysis leads to the application of a foreign statute that creates a substantive right, then you apply the entire statute.