Northern Dave: Guy, given your response I seriously doubt you’d find any use of foreign influence on the SCOTUS a problem.With Stevens (my fourth link) and Ginsburg (my third link) claiming that rather than precedent within US law they ought to be following offshore influences (as they obviously did with Lawrence — see Kennedy in link 1) you are obviously an Internationalist.The second link related to the completely unConstitutional and unAmerican attempt to circumvent the 2nd Amendment and create a State where the populace is unable to defend itself from Tyranny.While the primary actors were US based, the philosophy is standard Old-World.Why should the US adopt the tired, failed policies of places people seek to come to the US from??

As I said twice, they obviously did not apply foreign precedent in Lawrence, Justice Kennedy was rebutting the specific claim that homosexuality is incompatible with “western culture”. To the extent that that’s a valid argument at all, it can be rejected by reference to other western countries; it’s a factual question, not a legal question. The Second Amendment link is, still, not about a court ruling at all.

Also, I would not describe myself as an “internationalist”, though I’m not sure what that means.

Del: It’s done where there is some other connection to the forum. Whereas, parties can generally contract for any body of law, they cannot make the courts of a jurisdiction hear their dispute, by simple agreement.

Well, objections to venue are waived, if not timely asserted. Although I suppose that a court could raise the issue sua sponte.

Parties, generally, cannot create venue by agreement, there has to be some other connection to the forum. ”

I’ve DONE IT a large number of times in the real world.

It’s done where there is some other connection to the forum. Whereas, parties can generally contract for any body of law, they cannot make the courts of a jurisdiction hear their dispute, by simple agreement.

Also, none of the statutes you cite make corporations incorporate in State. That, was your bizarre claim.

“Andrew J. Lazarus says: Doug, my man, I don’t think someone who thinks Apple needs to incorporate in New York to sell in New York should be telling us about his experience in business. (When in a hole, stop digging.)”

Agree, Andrew. So why do you continue?

Here is a practical way for you to get up to speed. Think up a “foreign corporation”, foreign to california – meaning not in-state – and search it’s name to see if it has a California filing.

http://kepler.sos.ca.gov/cbs.aspx

You may also with to review the California Corporations Code. I believe this is the relevant section:

CORPORATIONS CODE
SECTION 2100-2117.1

2100. This chapter applies only to foreign corporations transacting
intrastate business, except as otherwise expressly provided.

Have a great day.

“S says:

Doug’s discussion of venue agreements is unrealistic. Parties, generally, cannot create venue by agreement, there has to be some other connection to the forum. “

I’ve DONE IT a large number of times in the real world. Can’t recall any of these contracts going to dispute and having the applicable law and venue clause challenged … so maybe you are right. But, certainly all examples passed scrutiny of legal counsel on both sides before being signed.

Repeal 16-17: This would be an amendment to Oklahoma’s State Constitution. So how can it violate that same State Constitution?OTOH, I do agree with those who point the bad wording of this proposal. It definitely needs a rewrite.

I missed that too. This raises the interesting general question of how judicial review deals with internally contradictory provisions in constitutions.

yankee: Is it constitutional for the Oklahoma legislature to pass this kind of blanket restriction on what the courts may “consider”? The Oklahoma Constitution provides that the three branches are “separate and distinct, and neither shall exercise the powers properly belonging to either of the others.” The power to decide what law a court will “consider” seems like an inherently judicial function. I don’t know if the separate and distinct clause has any teeth under Oklahoma constitutional precedent though.

“Yankee” expresses my sense of this. The legislature telling the courts what they may consider as persuasive authority violates the constitutional separation of powers. The legislature may enact statutes which, if constitutional, the courts must accept as mandatory authority, but any persuasive idea may help the courts in deciding an issue, even it has been articulated by a child or the government of Iran. For the legislature to forbid the courts from “considering” a foreign law is to tell them what they may not think. THe legislature perhaps doesn’t understand the difference between mandatory and persuasive authority.

DougInSanDiego: Andrew — you have zero business experience.Business deals are not made or lost upon venue.That’s idiotic.REALLY idiotic.

True. But they are lost on choice of law. Have you figured
out the distinction yet?

DougInSanDiego: Andrew — you have zero business experience.
Business deals are not made or lost upon venue. That’s idiotic. REALLY idiotic.

Doug, my man, I don’t think someone who thinks Apple needs to incorporate in New York to sell in New York should be telling us about his experience in business. (When in a hole, stop digging.) One reason you aren’t familiar with the idea a deal could fall through because of venue is that, up until now, no state has passed anything so stupid as this proposal. My experience (IANAL, but I’ve worked in a technical firm small enough that I got to read the sales agreements) is that any clause in a contract that can’t be agreed upon is a potential deal-breaker. Now, if you want to bring an argument to the contrary based on deep experience with major international contracts, go ahead. You could start by explaining why this presentation on doing business in China mentions the choice-of-venue clause as very important, suggesting Singapore or Hong Kong and stating that Chinese companies will be unwilling to accept an American venue because of expense. But then, you can’t get good chowmein in Oklahoma anyway.

DonBoy: Failing that, I don’t know how you can get any answer to the question of how marriages end except by waiting for everyone in the country to be either divorced or dead.

Business deals are not made or lost upon venue. That’s idiotic. REALLY idiotic.

This binding Supreme Court precedent would trump any state constitutional amendment to the contrary via the Supremacy clause.

It violates various U.S. treaties that require using international law in various situations in state court, such as treaties on international child custody issues and a variety of other matters.

It is also just plain bad policy. It is unwise and impolitic. It reflects a high-handed foolishness that a great power cannot have if it wants to remain great for long.

DougInSanDiego: So, I propose Delaware venue & law. Etc etc etc., and we reach an agreement.

Except what is more likely to happen is your French business prospect goes with your Utah competitor who can lawfully agree to their request to use French contract law. You would think this would be pretty obvious, and I wonder how Oklahoma business feels about this nonsense.

What? Why do they need a NY corp. to sell in NY? Any such NY requirement would be unconstitutional.

I thought that was a pretty astounding assertion to make as well. I’d like to see a cite to the NY statute that says only corporations incorporated in NY can sell in NY.

That does NOT mean they do not have a wholly owned, incorporated entity in NY — without which they would not be able to legally sell there.

What? Why do they need a NY corp. to sell in NY? Any such NY requirement would be unconstitutional.

ps: as in the gem?

That does NOT mean they do not have a wholly owned, incorporated entity in NY – without which they would not be able to legally sell there.

“Working in NY” is a very different thing from having assets in NY against which one could enforce a judgment. You have to enforce the judgment where the assets are located if you ever expect to collect.

“Andrew J. Lazarus says: I didn’t know Apple and Google were in New York.”

If you start sniping, you might expect people to respond accordingly, SIR.

You may want to do a Corporations search for Apple, and for Google, in NY.

Then get back to us.

ps: YES, Andres, we KNOW where their corporate offices are ………………..

DougInSanDiego: A company selling or otherwise doing business internationally, I would think, is most likely working in NY. The exceptions would probably be few and far between.

I didn’t know Apple and Google were in New York. I suggest, Doug, you be a little slower about accusing other people (e.g., me) of ignorance and then blundering along like this. But in any event, you are reinforcing the point many of us are making: such companies are in NY, and California, and Delaware, and under this law they darn sure won’t be in Oklahoma. How this “saves” Oklahoma is impossible to see.

Incidentally, according to Google, Dollar-Thrifty Rent-a-car is headquartered in Oklahoma, a business I think would be extremely interested in choice-of-venue clauses. Wouldn’t it be too bad if DTG couldn’t do business overseas anymore?

“Cornellian says: I understand that vast majority of such international agreements have a choice of law clause selecting either New York or UK law as the governing law, partly because the commercial law of those jurisdictions is very well known and partly because that’s where armies of big firm lawyers are located. But apparently, such contracts will no longer be enforceable in Oklahoma, at least as regards to UK law.

Another interesting federalism point — could you get a judgment in a New York court that “turned to” foreign law, then enforce it in Oklahoma? Even if the judgment is clearly based on UK law? Or would that also be turning to the dreaded foreign law? Wouldn’t a refusal to enforce it violate full faith and credit?”

We are speaking about a company doing business in (in this example) France. A company selling or otherwise doing business internationally, I would think, is most likely working in NY. The exceptions would probably be few and far between.

Thus, a decision in New york could be enforced in New York, without the need to then pursue a secondary legal action in Ok. That presumes a JUDGMENT and a Writ obtained in NY would NOT be deemed enforceable in Ok. under Ok. law.

Then, of course, there is the likelihood that my fictitious company is probably a Delaware corporation…………

Does this prohibit the further development of common law in the state courts of Oklahoma? Also, are existing choice of law precepts part of the common law currently applicable in Oklahoma?

I understand that vast majority of such international agreements have a choice of law clause selecting either New York or UK law as the governing law, partly because the commercial law of those jurisdictions is very well known and partly because that’s where armies of big firm lawyers are located. But apparently, such contracts will no longer be enforceable in Oklahoma, at least as regards to UK law.

Another interesting federalism point – could you get a judgment in a New York court that “turned to” foreign law, then enforce it in Oklahoma? Even if the judgment is clearly based on UK law? Or would that also be turning to the dreaded foreign law? Wouldn’t a refusal to enforce it violate full faith and credit?

“Andrew J. Lazarus says: Bin Laden, the same. Doug in San Diego, three of a kind.”

I wonder just how much experience you have, Andrew.

Here is a reality check for you.

I don’t, but let’s pretend one of my companies is in Oklahoma and I wish to consummate a deal with a French company (to use the most extreme example imaginable). My Ok. company is bound to use ‘domestic’ law if a dispute is adjudicated in an Ok. court. Gee – that’s not bad for me, as my legal staff has a bit of familiarity with Ok. law. Besides, the good people of Ok. simply wanted to prevent Sharia law (etc etc) from being forced on ‘domestic’ disputes. Thus, Ok. law is pretty much what is in effect in most other states.

But – my French counterpart, being French, does not wish to be bound by Ok. law, fearing there may be some hidden twists his legal staff is not familiar with. He wants disputes heard in a French court, under French law. Now, if it was Sharia law, maybe I could agree — but certainly not French law.

So, I propose Delaware venue & law. Etc etc etc., and we reach an agreement.

Now – since you are ever so informed about contract law and business negotiations – please explain where my company has been damaged, or where I have missed out on a valid business opportunity, or where I and my company have exhibited “an elitist and held a romantic view of villages happy in poverty and ignorance of the world around them.”

Be waiting for your educated response ….

DougInSanDiego: But, if that is not a legal clause for an Oklahoma entity it cannot be followed. Hopefully the Oklahoma entity is educated enough to know that up front and not create an unenforceable clause. If so, they will need to negotiate a different agreement. Big deal.

Probably a very big deal if you are an OK company hoping to grow into a multinational. A stand selling dirt by the side of the road, not so much.

To take this seriously, a surprising assortment of people have never been able to adjust to the shrinking world. I was shocked to read Gandhi on the subject: the truth is, he was an elitist and held a romantic view of villages happy in poverty and ignorance of the world around them. Bin Laden, the same. Doug in San Diego, three of a kind.

JaimeInTexas (Jam):
If a contract is to be enforced according to, say, Brazilian law but is to be litigated in Oklahoma ….sue, for malpractice, the lawyer who gave the businessman advice.Or, the businessman ought to find himself another way of earning a living.

If the businessman sued the lawyer for malpractice–what would that claim look like? “I claim: My favorable choice-of-law provision that I asked my lawyer to help me negotiate is no longer in the contract. And this is because my lawyer was negligent. My lawyer was negligent because . . . although he knew the law at the time of the contract, he failed to predict that OK would pass this xenophobic amendment to their Constitution.” Do you think that would win? I don’t.

Sure, let’s punish the businessman for being savvy enough to get a (what-was-at-the-time-favorable) choice of law provision into a contract! That’ll make all the businessmen want to do business in OK. Maybe the businessman should get a new career–it’ll probably not involve doing business in OK.

If OK wants to drive away businesses, this might be the ticket.

Petty Like a God: But that’s not what they agreed to. Venue was part of their negotiation. They are businesspeople, and they had business reasons for structuring their agreement this way. (E.g., as mentioned in a comment above, some deals involve a trade-off of choice of law/choice of venue.)And OK wants to abrogate parties’ freedom to contract because . . . it “Saves Our State” to do so? Because . . . it “Loses Our State” when the OK court applies foreign law pursuant to a freely-entered contract? In what way is OK harmed when the OK court applies this foreign law, when that’s what the parties agreed to? U.S. courts are competent to apply foreign law. They do it every day in this country. Have been doing so for a long time.

If a contract is to be enforced according to, say, Brazilian law but is to be litigated in Oklahoma ….

sue, for malpractice, the lawyer who gave the businessman advice.

Or, the businessman ought to find himself another way of earning a living.

Petty Like a God:
I agree with the points that you’re making. However–I have trouble believing that the OK legislature is rejecting foreign laws on the merits. They seem to be rejecting foreign law . . . because it’s foreign. My support for this conclusion is the following: Take the entire body of “international” law, and take the entire body of domestic law for every foreign country in the world. Then throw in the entire body of religious law (Sharia being an example of this). Has the OK legislature truly done work to “identify differences and reject those differences” that they dislike, across this entire vast body of law they are rejecting? No. They are not rejecting particular policies piecemeal–they are rejecting the use of foreign law. Period. I’m sure it’s already part of OK conflicts-of-law jurisprudence that the courts won’t enforce laws that are in conflict with OK public policy. So it’s not like foreign influence is going to somehow overpower OK’s values (whatever they may be).

I agree, it’s plausible to think that they’re rejecting foreign law because it’s foreign. Could they be doing so on the grounds that they cannot participate in the making of foreign law, and that therefore foreign law is illegitimate?

In other words, it seems to me that there’s a plausible mode of reasoning that would explain their rejection of foreign law because it’s foreign: they think that “law” made without the consent or participation of those upon whom it operates is not law at all, and that such illegitimate laws should not be enforced in OK.

::shoulder shrug:: I dunno; seems plausible. I disagree, again, b/c in choice of law problems courts don’t enforce int’l law to govern primary conduct of OK citizens except as adopted in treaties, which renders it U.S. law. So, they’re ultimately misguided, but I think they could be expressing a plausible disagreement with foreign/international law.