Every business and commercial litigator has read countless contracts containing “choice of law” provisions. Such provisions are part of the standard boilerplate of virtually every commercial contract. Because “choice of law” is rarely a consideration going to the heart of the business deal at issue, it is not unusual for them to be given scant attention during the negotiation and drafting phase. As a result, “choice of law” clauses are often overlooked in their potential importance, as the parties and counsel concentrate on the more immediate matter of the explicit commercial terms.
When the deal goes sour, however, and it comes time for the parties to assert and enforce their contractual rights, the spotlight often turns to the “choice of law” provision – which perhaps no one had paid much attention to previously.
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