American Law - Chapter 3.3 - Transnational Litigation and Commercial Arbitration - 3rd Edition
Joseph Lookofsky is Professor of Private and Commercial Law at the University of Copenhagen. He received his B.A. in Economics from Lehigh University, his J.D. from the New York University School of Law, and was admitted to the New York State Bar in 1971. He received his Danish law degrees (cand.jur. and dr.jur.) from the University of Copenhagen and joined the Law Faculty there in 1982. Professor Lookofsky has lectured on the CISG and other international commercial law topics for the Danish Bar Association (Advokatsamfund), the Duke University Law School in North Carolina, the University of Bologna (Facoltá di Giurisprudenza), the Albert-Ludwigs-Universität Freiburg (Institut für Ausländisches und Internationales Privatrecht), and the Cornell-Paris I (Sorbonne) Summer Institute of International & Comparative Law. He is also Secretary General of the Danish Committee for Comparative Law (Association Internationale des Sciences Juridiques.
Ketilbjorn Hertz is Senior Consultant with the Danish Ministry of Justice, which he joined in 1997, and in that capacity he has participated in the drafting of important legislation, including the Bill, which led to the adoption of the Danish Arbitration Act 2005 He received degrees from the University of Copenhagen, B.A. in law in 1991, cand.jur. in 1993, B.A. in French in 1998, and Ph.D. in law in 1998.
3.3. AMERICAN LAW
3.3.1 Introduction: Significant Contacts and Government Interests
American lawyers have long struggled with many of the same choice of law problems that Europeans have had to face.1 But, given the disparities we have seen with respect to jurisdictional solutions,2 we could hardly expect that the same kinds of conflicts solutions reached in Europe would also be suitable for use on the other side of the Atlantic.3 Indeed, the materials which follow should serve to confirm that developments in American jurisprudence during the course of the twentieth century have established a truly unique conflict-of-laws landscape – a landscape which many European observers find quite difficult to understand, let alone appreciate.
To begin with a fundamental point: the American substantive law of both contract and tort consists almost exclusively of State law. So, if we want to know if a given contract is binding, or whether a given defendant is liable for a negligent act, we must look to State (as opposed to Federal) law.4
For this simple reason, no American (State or Federal) court can adjudicate the merits of any “run-of-the-mill” contract or tort case without first determining which State’s substantive law to apply. So, for example, an American court cannot decide a contract case involving merchants in New York and California without first deciding whether the substantive contract law of New York or California should apply.
Taking this same logic to the international level, an American court asked to decide a contractual dispute between parties located in New York and Germany must first choose between the substantive contract law which is part of the law of the State of New York and the substantive contract law of Germany.
CHAPTER 3 THE APPLICABLE LAW — IN CONTRACT AND TORT3.3 Choice and Conflict in American Courts 3.3.1 Introduction: Significant Contacts and Governmental Interests 3.3.2 Contracts and Sales A. The First Restatement Madaus v. November Hill Farm (1986) Notes, Questions & Commentary B. The Second Restatement Nordson Corp. v. Plasschaert (1982) Notes, Questions & Commentary C. International Sales Contracts (Revisited) Ajax Tool Works, Inc. v. Can-Eng Mfg. (2003) Notes, Questions & Commentary 3.3.3 Tort Conflicts: General Principles A. The First Restatement B. The Second Restatement Babcock v. Jackson (1963) Notes, Questions & Commentary Barkanic v. General Aviation [China] (1991) Notes, Questions & Commentary Simon II Tobacco Litigation (2000) Notes & Questions 3.3.4 Product Liability Trahan v. Squibb (1983) Notes, Questions & Commentary Kozoway v. Massey-Ferguson, Inc. (1989) Notes, Questions & Commentary Townsend v. Sears Roebuck (2007) Notes, Questions & Commentary