Category Archives: Conflict of Laws

A Comparative Look At The New Hague Principles on Choice of Law & the Restatement (Second) of Conflict of Laws: Second Post

Today I bring you the second post in our series comparing the new Hague Principles on Choice of Law and the Restatement (Second) of Conflict of Laws. I say “I,” but I mean “we.” Jonathan Levin, who interned this summer at the Permanent Bureau of the Hague Conference, is a co-author of these posts.
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A Comparative Look At The New Hague Principles on Choice of Law & the Restatement (Second) of Conflict of Laws: First Post

As promised, here is the first post in what I hope will be a short series of posts comparing the new Hague Principles on Choice of Law in International Commercial Contracts and the Restatement (Second) of Conflict of Laws. I had a pleasant surprise after noting the publication of the Principles last month: Marta Pertegás, the First Secretary of the Permanent Bureau of the Hague Conference, took an interest in the idea of the post. From this, Jonathan Levin, an NYU law student who is interning this summer at the Permanent Bureau, independently offered to conduct a comparative study for the purposes of these posts. I’ll publish his report with the last post in the series.
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Case of the Day: Martinez v. Bloomberg

The case of the day is Martinez v. Bloomberg LP (2d Cir. 2014). Brian Anthony Martinez, a former employee of Bloomberg LP, sued Bloomberg for wrongful termination in violation of the Americans with Disabilities Act. The facts aren’t that important to the decision. Martinez’s employment contract had an English choice of law clause and an exclusive forum selection clause naming the courts of England as the exclusive forum for disputes. Bloomberg moved to dismiss under FRCP 12(b)(3) for improper venue. 1 The district court dismissed, and Martinez appealed. He argued that the district court was wrong in its view of the scope of the choice of forum clause (i.e., that assuming the clause was enforceable, it did not apply to his ADA claim) and that in any event the clause was unenforceable.
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Notes:

  1. We know, in light of Atlantic Marine, that the correct procedure is to move to dismiss for forum non conveniens, not for improper venue, but that procedural nicety is not key to the decision.