MEE - Conflict of Laws Flashcards
*How may service of a foreign corporation be made?
FRCP permits the court to authorize alternative methods of service in appropriate cases. Service on a foreign corporation may be made (1) in accordance with international treaty; if there is no treaty, service on a corporation may be made: (2) in accordance with the foreign country’s laws, (3) as the foreign authority directs in response to a letter request for guidance, (4) by having the clerk mail process to the defendant, with a signed receipt requested; or, most importantly, (5) by an other means not prohibited by international agreement as the court may order (This would include emails).
FRCP requires that the method of service ordered by the court be reasonably calculated to provide the defendant with notice of the action.
*In determining choice of law rules in a federal court what is the “most significant relationship” approach?
The “most significant relationship” approach of the Second Restatement seeks to identify the state with the most significant relationship to the issue at hand and then apply that state’s law. The court will look at the specific contacts with each jurisdiction and evaluate their relative importance. The court will also consider policy principles, such as the needs of the interstate or international system, the relevant policies of the forum and other interested jurisdictions, whether the application of a specific law will further its basic policies, and whether application of a particular law will aid certainty, predictability, and uniformity of results. In deterring which state has the most significant relation to both the occurrence and the parties, the court in tort cases will take these specific contacts into account: the place of the injury; the place where the conduct causing the injury occurs; the domicile, residence, nationality, place of incorporation, and place of business of the parties; and the place where the relationship, if any, between the parties is centered.
*Should a court allow an amended motion to dismiss when such a motion was filed two days previously and has not yet been heard?
Ordinarily, failing to raise defects related to service of process in the party’s first answer or motion to dismiss waives the defect. However, the federal rules should be construed to do justice as between the parties, and the rules permit liberal amendment of pleadings when no prejudice or delay would occur. Furthermore, the FRCP could allow an amendment to an answer to include an omitted defense when the amendment is as of course.
*Under the Erie doctrine, are a state’s choice of law rules substantive or procedural?
Under Erie, a federal court must apply the substantive law of the state in which it sits, but the court is free to apply federal procedural law. It is also well established by the SC that choice of law rules are substantive for Erie purposes.
*What are the exceptions on the parties’ choice of law in a contract?
Generally speaking, the parties may agree to a choice of law provision in a contract, and this provision will govern the contract. However, there are two exceptions to this general rule.
First, if the chosen state has no substantial relationship to the parties or the transaction, and there is no other reasonable basis for the parties’ choice, the choice-of-law provision will be invalidated.
Second, a choice of law provision will be invalidated if the choice of law provision is contrary to the fundamental policy of a state with a materially greater interest than the chosen state in the determination of the particular issue, and which under the most significant relationship test would be the state of the applicable law in the absence of an effective choice of law by the parties.
