Defenses to Choice of Law

Question 1

2 primary defenses re Choice of Law?

Answer 1

1) public policy
2) procedural rules

Question 2

What is the public policy defense?

Answer 2

Forum court will not apply a law that’s against its own fundamental public policy; usually applicable to 1st Rst. approach

Question 3

Important caveat re public policy defense?

Answer 3

does NOT apply to recognition of judgments

Question 4

What is the procedural issues defense?

Answer 4

Regardless of outcome of CofL analysis, forum court will ALWAYS use its OWN procedural rules

Question 5

Are statutes of limitations issues considered procedural here?

Answer 5

Generally yes UNLESS borrowing statute applicable OR limitations condition a substantive right

Question 6

What is a borrowing statute?

Answer 6

Direct court to look at both the forum limitations period AND the foreign limitations period AND then apply shorter period

Question 7

What is meant by “limitations that condition a substantive right?”

Answer 7

If normal choice of law analysis leads to application of a foreign statute that creates a substantive right, apply ENTIRE STATUTE