Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. In a diversity case, the district court must apply the choice of law rules of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). But, where a case is transferred from one court to another, it is the choice of law rules of the transferor court that will apply. Van Dusen v. Barrack, 376 U.S. 612 (1964).
  2. Generally, once a court resolves to apply foreign law, it does not apply foreign choice of law rules (the “entire law”), only the internal substantive non-U.S. law (the “local law”). In some limited instances, however, the forum that is applying non-U.S. law may apply the foreign law’s choice of law rules, under the doctrine of “renvoi” (French for “send back”). Under the Second Restatement of Conflicts of Law, non-U.S. law may apply when (1) the objective of the rule is that the forum court reach the same result on the very facts as would the non-U.S. state, or (2) the forum state has no substantial relationship to the particular issue or parties and the courts of the interested states would concur in selecting the non-U.S. local law applicable to the issue. (Restatement (Second) of Conflict of Laws § 8(2),(3) (1971) (hereinafter “Second Restatement”) In such cases, the foreign choice of law rules may in turn dictate that the forum’s substantive laws should apply, and in such cases the forum court may either accept or reject this “remission.”

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