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| {{essay|boilerplate|governing law and jurisdiction|{{image|Dredd|jpg||Jurisdict ''this''.}} }} | | {{essay|boilerplate|governing law and jurisdiction|{{image|Dredd|jpg||Jurisdict ''this''.}} }} |
| ===A contrarian writes ...===
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| It is said<ref>I had a [https://www.amazon.co.uk/William-Conqueror-Ladybird-Adventure-Histories/dp/0241249473 ladybird book about William the Conqueror] that said this so it must be true.</ref> that, when William of Normandy landed on the beaches of Pevensey bay, he had his carpenters drill holes through the hulls of all his boats, so his men could not turn back should the going get too tough.
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| “We are here, men,” you can imagine him saying. “We stand and fight or we die. There will be no running back to ''maman''.”
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| You could make the argument that the governing law clause is just that: a pretext to run back to ''maman''. It speaks to everything that is wrong about the modern [[legal eagle]]’s approach to a commercial contract. If you take it that a ''good'' contract is one that has been so well drafted that no dispute could arise under it, then a good contract will ''never'' be [[Writing for a judge|read within the walls of a courtroom]], and so a [[governing law]] clause ought to be entirely unnecessary. A [[Consensus ad idem|meeting of minds]] is a [[meeting of minds]], whether you are in London, Amsterdam or Timbuktu. It sends the wrong message to even talk about what laws govern the contract. It shouldn’t matter, unless one is anticipating jurisdictional arbitrage of some kind. Failing that, it is some kind of tacit acknowledgement that one has drafted a ''bad'' contract, that might need an independent arbitrator to figure out what the parties intended.
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| I am not suggesting much less expecting any [[legal eagle]] to give up on a comfort blanket as cosy as a [[governing law]] clause, but it is a worthwhile thought experiment.
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| ===Inhouse [[legal eagle]] shop steward opportunity===
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| The proposed governing law not being the one in which ''l’[[aigle juridique]]'' is qualified and licensed to practice is a ''magnificent'' opportunity for a busy [[in-house lawyer]] to work to rule, shunting a dreary job off his desk by lateral [[escalation]] onto Helmut’s desk, which sits in your Frankfurt office.
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| “This agreement is governed by German law. I simply cannot opine,” he will say, and look airily towards the work-shy [[rechtsadler]]. “Helmut will have to advise.”
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| Now, there ''is'' a veneer of truth about this — a sheen of cover, ''just'' thick enough to rebuff a non-specialist [[salesperson]], who may privately be disinclined to believe it. She will harbour a suspicion that the basic precepts of the commercial bargain are, as far as makes any difference, the same whatever legal regime governs them, and that her present lawyer is simply being truculent, lazy or obtuse. But she cannot prove this. Rather brilliantly, nor can her lawyer, for he has no better idea about German law than she does. Nor that matter, can Helmut (assuming you can get a response out of him at all), for he knows nothing of the [[common law]].
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| Each apex of this gristly triangle has its own distinct magisterium of expertise, and none overlaps: ''no-one'' has a grasp of German law, English law, ''and'' the intended bargain unprejudiced enough to confirm beyond reasonable doubt the obvious proposition that ''the governing law which applies to the bargain won’t make a fig of difference to the commercial outcome''.
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| But unless you plan to litigate your contract — and if on the day you sign it you ''do'', frankly you have much bigger problems — you might be better advised to compose a clear contract that is not capable of misunderstanding in the first place.
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| {{sa}}
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| *[[Writing for a judge]]
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| *[[Governing Law - ISDA Provision]]
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| *[[Exclusive jurisdiction]]
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| *[[Governing Law and Jurisdiction - GMSLA Provision]]
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| *[[Rome II]]
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| {{ref}}
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