Common Public License

[Ravicher, Daniel B.]

> From: John Cowan [mailto:jcowan at reutershealth.com]
>
> What is known about the enforceability of attempts to opt out of
> conflicts rules, as most contracts seem to do these days?

The provision in the CPL is curious because although it seems
straightforward enough, it may actually be unclear.  By that I mean, the
provision says NY law will be used.  Consider what would happen if NY Choice
of Law rules hold that under certain facts the substantive law of another
state will apply.  

So, let's say that you sue in CA over the CPL.  The CA ct reads it and does
CA Choice of Law rules analysis.  Assume CA ct decides to follow the CPL and
use NY law.  The CA ct then looks at NY's Choice of Law rules.  It's
possible that NY's Choice of Law rules may pick FL law to apply (there are
several different types of Choice of Law rules, including situs,
governmental interest, comity, etc., and I don't know which CA or NY has).
So, the CA ct applies CA Choice of Law rules which select NY's Choice of Law
rules which in turn select FL substantive law to govern.  Not very pretty
and not easy to litigate.  This is why many contracts say, "This agreement
shall be governed and construed in accordance with the laws of the State of
<state name>,
_without_regard_to_the_Choice_of_Law_or_Conflicts_of_Law_principles_or_provi
sions_thereof."  
 
> In principle you may be right.  But I'm betting that it's because
> the CPL derives from the IBMPL, and IBM is headquartered in
> Armonk, N.Y.

I agree that this clause was probably just carried over from the IBMPL.  I'd
also just note that such a provision makes the CPL incompatible with the
GLP.

--Dan

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