The influence of non-governing law on the interpretation of contracts in the United States. (2nd September 2015)

• Record Type: Journal Article
• Authors: Wolters, Pieter
• Is Part Of: Journal of private international law. Volume 11:Number 3(2015:Dec.)
• Page Start: 505
• Page End: 541
• Publication Date: 2015-09-02
• Subjects: contracts -- interpretation of contracts -- intention -- non-governing law -- Islamic law -- Jewish law -- Restatement (Second) of Conflict of Laws -- Restatement (Second) of Contracts; Conflict of laws -- Periodicals; 340.905
• DOI: 10.1080/17441048.2015.1103593
• Languages: English
• ISSNs: 1757-8418

Abstract

Abstract : In a globalized world, the parties and the contract are often "connected" to a law or jurisdiction that is different from the forum. In the current literature, the question of whether this law should influence the interpretation of such a contract has been approached from a conflict of laws perspective. However, this approach does not explain the influence of the "non-governing" law when this law is not applied. After all, the conflict of laws rule might lead to the application of another law. This paper shows that the non-governing law can influence the interpretation of a contract. Non-governing law can be connected to the contract, or to the parties to the contract, in various ways. In these situations, a court can consider non-governing law to better vindicate the intention of the parties. Furthermore, non-governing law can also influence the interpretation "through" other circumstances. Moreover, the influence of non-governing law is not significantly different from the influence of several more established circumstances. The influence of non-governing law on the interpretation of a contract is limited to situations wherein the relevant conflict of laws rules do not lead to the application of the connected non-governing law. However, within this scope, the ability to consider non-governing law is a useful tool that is superior to the "conflicts of law approach".