ࡱ> #` ebjbj DC%~~~yyy8y|&f}f}B~݆݆݆-h|~$݆݆$$~~(LLL$b~~L$LL~~LZ} ІAy" L<LF L~L@݆ٚFLl ݆݆݆^݆݆݆$$$$D1J.J~~~~~~ Oregons Choice-of-Law Codification for Contract Conflicts: An Exegesis Symeon C. Symeonides* I. Introduction 1. The American Choice-of-Law Revolution and Its Aftermath Oregons propensity and capacity to innovate have manifested themselves in many areas of the law, including the law of conflict of laws. In the early 1960s, Oregon, along with New York, took the lead in a movement that has since become known as the American choice-of-law revolution. In Lilienthal v. Kaufman, the Oregon Supreme Court abandoned the traditional choice-of-law rule of lex loci contractus, which required the inexorable application of the law of the place where the contract was made to any and all issues of contract conflicts. In its place, the court adopted an approach known as governmental interest analysis first advocated by Professor Brainerd Currie. Although two earlier cases had also abandoned the lex loci contractus rule, their reasoning in those cases was hesitant and equivocal. Lilienthal was the first truly revolutionary case in contract conflicts. The choice-of-law revolution caught fire in the 1970s, spread in the 1980s, and declared victory in the 1990s, leading to the demolition of the centuries-old choice-of-law system, at least in tort and contract conflicts. By the end of the twentieth century, forty-one U.S. jurisdictions had abandoned the traditional system in contract conflicts, and forty-two jurisdictions did likewise in tort conflicts. However, although the revolution has changed American conflicts law in many beneficial ways, it did not produce a new choice-of-law system to replace the old one. Rather than offering a unified vision for the future, the revolution offered conflicting theories, which the courts have merged together, often adding their own variations. In its zeal to cleanse the system from all the vestiges of traditional thinking, the revolution careened to the other extreme of denouncing not only the particular rules of the First Conflicts Restatement, but also all choice-of-law rules in general. Rules were replaced with approaches: namely, flexible formulae that do not prescribe solutions in advance, but simply enumerate the factors to be considered in the judicial fashioning of an ad hoc solution for each conflict. Although these factors differ from one approach to the next, all such approaches are open-ended and call for an individualized, ad hoc handling of each case. For some time, these approaches were looked upon as panacea. They were perceived as capable of resolving all problems without the aid of rules, not even those produced by the normal workings of precedent. At some point, American conflicts law began looking like a tale of a thousand-and-one-cases in which each case [was] decided as if it were unique and of first impression. While flexibility is preferable to uncritical rigidity, too much flexibility can be as bad as no flexibility at all. Among other things, it increases litigation costs, wastes judicial resources, and raises the possibility of judicial subjectivism, a phenomenon aptly described as judicial particularistic intuitionism or impressionnisme juridique. In turn, judicial subjectivism leads to dissimilar handling of similar cases, which in turn tests the citizens faith in the legal system and tends to undermine its very legitimacy. While conflicts law is, in some respects, a field apart, it is not so different as to risk ignoring these fundamental values for long. Polyphony and flexibility are both necessary and enriching in periods of transition and experimentation, but they should not be the ultimate destination goals. Put another way, transitions and experimentations should not last forever. Four decades after the revolution began, it became evident that it had gone too far in embracing flexibility to the exclusion of all certainty, just as the traditional system had gone too far toward certainty to the exclusion of all flexibility. It was time for an exit strategy that would consolidate and preserve the gains of the revolution, curtail its excesses, and turn its victory into success. 2. Oregon Takes the Lead, Once Again Once again, Oregon took the lead in recognizing the need for a new way, an exit strategy from the anarchy of the conflicts revolution. This strategy called for a new breed of smart, evolutionary choice-of-law rules that would preserve the methodological accomplishments of the revolution while restoring a proper equilibrium between certainty and flexibility. To implement this strategy, the Oregon Law Commission, decided to undertake the ambitious project of drafting choice-of-law rules for enactment by the states legislature. The first phase of this project produced a new comprehensive statute for contract conflicts. This statute (hereinafter referred to as the Act) was drafted by the Commission in 2000, adopted by the Oregon legislature in 2001, became effective on January 1, 2002, and applies to all actions filed on or after that date. The second phase of this project (currently under way) is the drafting of a similar statute for tort conflicts. This Article provides an exegesis of the new Act in an effort to assist courts and counsel in interpreting and applying it. The author was an active participant in drafting the Act under the Commissions auspices. He also presented the Bill to the Oregon legislature. The author previously drafted another codification, which was used as the model in drafting the Oregon Act. Even so, however, the views expressed here are solely those of this author and do not represent the views of the Commission or of the drafting group. II. Preliminaries After defining the terms law and state, the Act delineates its scope of operation by stating somewhat circularly that it govern[s] the choice of law applicable to any contract . . . when a choice between the laws of different states is at issue. In other words, the Act applies when the contract at issue has such contacts with more than one state (multistate contract) as to raise the question of which states law should govern the parties rights and obligations (choice-of-law question). Conversely, the Act does not apply when the contract in question does not have meaningful contacts with more than one state (a fully-domestic or intrastate contract). The Act also establishes its residual character vis--vis certain other Oregon statutes by providing that it do[es] not apply if another Oregon statute expressly designates the law applicable to the contract. This phrase contemplates statutes that contain choice-of-law rules providing that Oregon law (and occasionally the law of another state) governs certain contracts that have contacts with more than one state. One finds such rules (interspersed with substantive rules) in the Uniform Commercial Code, the Insurance Code, and many other statutes. These choice-of-law rules prevail over the Act, not because they are qualitatively better or hierarchically superior, but rather because they are more specific. They delineate the spatial reach of the substantive rules they accompany and, as such, they deserve deference by the drafters of more general rules such as those found in this Act. Moreover, many of these specific choice-of-law rules are derived from uniform laws, and any change would destroy the uniformity accomplished this far. III. Structure The Acts structure reflects its judicial orientation, which is particularly apparent in the sequence of the Acts sections. They are arranged in a sequence that charts a roadmap judges can easily follow. The operative part of the Act begins with section 81.105, which provides that certain contracts that have the specified Oregon contacts are governed by Oregon law, regardless of any other factors. Thus, when a judge encounters a contract with multistate elements, the judge should first look at section 81.105. If the contract fits the specifications of this section, the judge should apply Oregon substantive law, without having to look at the other sections of the Act, and without having to perform a choice-of-law analysis. If the contract does not fall within the scope of section 81.105, then the judge should inquire on whether the contract is valid as to form ( 81.110), capacity ( 81.112), and consent ( 81.115). If the contract is valid, the judge should inquire on whether the contract contains a choice-of-law clause. If so, the judge should examine the validity and effectiveness of the clause under sections 81.120 and 81.125. If the contract does not contain a choice-of-law clause, or contains one that is ineffective, the judge should proceed to sections 81.130 and 81.135. If the contract is one of those for which section 81.135 provides presumptive rules, the judge should apply the law designated by the applicable presumptive rule, unless the opposing party invokes the escape contained in that section and demonstrates that another law should apply under section 81.130. If section 81.135 does not provide a presumptive rule for the particular contract, the judge will resort to the general rule of section 81.130 and perform the choice-of-law analysis that section prescribes. The following discussion follows exactly this sequence, beginning with the Acts first operative provision, section 81.105. IV. Contracts Governed by Oregon Law (O.R.S. Section 81.105) Section 81.105 of the Act contains four unilateral rules mandating the application of Oregon law to four types of contracts that have certain specified connections with the state of Oregon, namely: (1) contracts for services to be rendered, or goods to be delivered, in Oregon if the State of Oregon or one of its agencies or subdivisions is a party; (2) contracts for construction work to be performed primarily in Oregon; (3) employment contracts for services to be rendered primarily in Oregon by Oregon residents; and (4) consumer contracts involving Oregon consumers acting in Oregon. As the above list indicates, the Oregon connections are that (a) all four of these contacts are to be performed in Oregon, and (b) in three of them, at least one party is an Oregon party. These connections are significant and they would probably lead to the choice of Oregon law regardless of which modern choice-of-law methodology one might follow. For this reason, and in the interest of judicial economy, section 81.105 exempts these contracts from a judicial choice-of-law analysis and directly subjects them to Oregon law. As its opening phrase states, section 81.105 prevails over all the other sections of this Act: Oregon law applies notwithstanding any other provision [in this Act]. This means, inter alia, that Oregon law applies to any and all issues in these contracts and that a contractual choice of another states law may not displace the application of Oregon law. When one of the parties is an Oregon party and Oregon law is more protective of that party than the law of the other involved state or states, then the application of Oregon law under section 81.105 can be based on two independent but parallel interests: (1) Oregons interests in regulating a contract that is performed in its territory; and (2) Oregons interest in protecting the Oregon party. The latter interest is obvious, for example, when, in a consumer contract that meets the requirements of section 81.1054(a), Oregon law is more protective of the Oregon consumer than the law of the merchants home state. In such a case, Oregon has every interest to apply its own law, even if the contract contains a choice of the other states law. In adopting precisely such a solution, section 81.105 parallels the laws of many other states, as well as the latest revision of the U.C.C., which provides that a choice of law clause may not deprive the consumer of the protection of any rule of law . . . which both is protective of consumers and may not be varied by agreement . . . of the State or country in which the consumer principally resides. However, when Oregon law is less protective of the Oregon consumer or other Oregon party, then the two above Oregon interests arguably point in opposite directions: the interest in regulating the contract points toward Oregon law, while the interest in protecting the Oregon party points toward foreign law. Section 81.105 takes the position that the former interest prevails, which means that Oregon law governs not only when it favors, but also when it disfavors the Oregon party. This is so even if the contract contains a choice of another states law. Indeed, the Oregon drafting group specifically rejected the notion adopted in some European codes, the Puerto Rico code, and recently the U.C.C., of allowing consumers or employees to opt out of non-protective local law. The group did accept the notion of allowing state agencies the option of waiving the application of Oregon law by, for example, signing a contrary choice-of-law clause. V. Form, Capacity, and Consent Sections 81.110, 81.112, and 81.115 deal with questions of contractual form, capacity, and consent, respectively. These questions do not arise as frequently today as they did in the past because the pertinent substantive rules of many states are now closer than ever. Nevertheless, at least theoretically, these questions are preliminary to any other choice-of-law questions in a contract dispute. Before proceeding further, one needs to know whether there was a binding contract, and in turn that depends on whether the parties followed the proper form, whether they had contractual capacity, and whether they validly expressed their assent to the contract. 1. Formal Validity (O.R.S. Section 81.110) Section 81.110 deals with the formal validity of contracts. It establishes what is known in conflicts literature as a rule of validation, i.e., a rule that favors the validity of contracts (favor negotii) by alternative references to whichever of the enumerated laws would uphold the contract. The justification for this result-oriented rule rests on the premise that, more often than not, the various state laws on contractual formalities differ only in minor detail, rather than fundamental policy. For this reason, failure to meet the technical requirements of one state should not, without more, defeat the intent of the parties in having a binding contract, if such a contract complies with the form requirements of another state reasonably related to the parties and the transaction. The first alternative reference is to the law chosen by the parties, and this creates a certain circuitry or bootstrapping. A contract is valid as to form if it satisfies the relevant requirements prescribed by the law chosen by the parties under ORS 81.120 and 81.125. However, this assumes that that law was validly chosen, and this, in turn, depends in part on whether the choice is contained in a contract that is formally valid under section 81.110. This apparent bootstrapping is harmless because of the safeguards contained in both section 81.120 and section 81.125. If the parties choice was expressed in the manner required by section 81.120 (express, and in some instances conspicuous) and remained within the limits prescribed by section 81.125, then a contract that satisfies the form requirements of the chosen law should be considered formally valid, even if it does not satisfy the form requirements of any of the other laws enumerated in section 81.110. The next three alternative references of section 81.110 are to the law applicable under sections ORS 81.105, 81.130 or 81.135. One should note that the reference to section 81.130 brings with it the individualized issue-by-issue analysis that section prescribes. Consequently, it is possible that, in employing the flexible analysis of section 81.130, a court may conclude, after considering all the factors listed in that provision, that the most appropriate law for the issue of form is the law of state X, even though with regard to other issues the law of state Y is the most appropriate. If so, the court should apply the law of state X to the issue of form, whether or not that law upholds the particular form. If it does not, and none of the other alternative references lead to a validating law, then the contract will be invalid as to form. Finally, the last alternative reference in section 81.110 is to the law of the state from which any party or the partys agent has assented to the contract. This resembles the rules found in other modern codifications, which focus on the place where the parties were at the time of the making of the contract. Section 81.110 takes a similar, but not identical position. Rather than referring to the place where the parties were at the pertinent time, section 81.110 refers more precisely to the place where the parties expressed their assent to the contract. This phrase is broad enough to encompass anything from a formal signing of the contract, a handshake, mere silence, or any other act or omission from which one may reasonably infer an agreement to be bound to the contract. When the parties express their assent to the contract in the same place, this rule will produce the same result as the old lex loci contractus rule. When the parties express their assent from different places, the law of either place may be used to validate the contract. However, section 81.110 also recognizes that in some cases the presence of a party in a given location may be fortuitous or it may be chosen deliberately so as to gain certain advantages. To guard against fortuity or evasion, section 81.110 allows the court to refuse to apply the law of a state that, but for the presence of the party at the pertinent time, has no other connection to the parties or the transaction. 2. Capacity (O.R.S. Section 81.112) Section 81.112 applies to the issue of capacity to enter into a binding contract. This section refers to two potentially different sets of laws: (a) the law of the domicile (lex domicilii) of the party whose capacity is at issue; and (b) the law applicable to this issue under ORS 81.105, 81.130 or 81.135. Subsection (1) of section 81.112 provides that the contract should be upheld as to capacity if it is valid under both or either of the above sets of laws. The fact that section 81.112 does not contain a cross-reference to sections 81.120 or 81.125 is deliberate; it means that issues of capacity are exempted from the scope of party autonomy. Consequently, the problem of bootstrapping, which was noted earlier with regard to form, does not arise with regard to capacity. For the sake of simplicity, the following discussion excludes contracts falling within sections 81.105 or 81.135 and focuses only on contracts falling within the scope of section 81.130, the general rule. Further, for the sake of brevity, the law that would be applicable to the issue of capacity under section 81.130 is referred to hereafter as the lex causae. To illustrate the operation of section 81.112, it would be helpful to think of the following possible combinations of laws and facts: (1) cases in which the lex causa is the same as the lex domicilii, namely cases in which the law applicable to the issue of capacity under section 81.130 is the law of the domicile of a party whose capacity is at issue; (2) cases in which the lex causae is not the lex domicilii, but in which the two laws produce the same result; (3) cases in which a contracting party is capable under the law of its domicile, but not under the lex causae; and (4) cases in which a party is incapable under the law of its domicile, but capable under the lex causae. Cases falling within patterns (1) and (2) do not present a choice problem, because in the first pattern there is only one option, and in the second pattern the two options produce the same result. Cases falling within patterns (3) or (4) do present a choice problem, which subsection (1) of section 81.112 resolves in a result-oriented fashion by authorizing the application of whichever of the two laws would uphold the contract. In cases falling within pattern (3), subsection (1) functions as a veritable rule of validation, and is subject to no exceptions. However, an exception is available with regard to cases falling within pattern (4). Subsection (2) of section 81.112 applies to these latter cases and provides the possibility of relief to the party who is incapable under the law of his domicile. That party can have the contract declared invalid if she proves that the other party knew or should have known of the incapacity. The famous Oregon case Lilienthal v. Kaufman, which this provision overrules, is a perfect scenario through which to explain the operation of this provision. Lilienthal involved a loan contract made in California between Mr. Lilienthal, a California domiciliary, and Mr. Kaufman, an Oregon domiciliary. The contract was valid under California law but invalid under Oregon law because Mr. Kaufman had been declared a spendthrift in Oregon, thus making his contracts voidable at the behest of his guardian. The Oregon Supreme Court found a true conflict between Oregon and California law and applied Oregon law, invalidating the contract. Under section 81.112, one should not automatically apply Oregon law, either because Oregon is the forum, or because it is the domicile of the incapable party. Rather, one should ask whether, under all the factors of section 81.130, California law would be applicable to the issue of capacity. For the purposes of this discussion, and for reasons explained in detail later, one should assume that California law would be applicable to this issue under section 81.130. Because California law would consider Mr. Kaufman capable of contracting, then under subsection (1) of Section 81.112, the contract should be upheld as to capacity. However, subsection (2) of section 81.112 would provide Mr. Kaufman with an additional defense. If he could prove that the other party, Mr. Lilienthal, knew or should have known of Mr. Kaufmans incapacity under Oregon law, then the consequences of incapacity would be determined by Oregon law, which would hold the contract voidable. Under the facts of Lilienthal, Mr. Lilienthal could not be charged with such actual or imputed knowledge. Although Lilienthal knew that Kaufman was an Oregon domiciliary, Lilienthal had no reason to suspect that Oregon, or for that matter any state of the United States, would have such an obscure rule that considered an adult person without any visible physical or mental infirmities incapable of contracting. Hence, Lilienthal had every reason to expect the contract would be enforceable. As the above discussion illustrates, section 81.112 aspires to attain an appropriate equilibrium between two often competing policies: (1) protecting the security of transactions and contractual expectations; and (2) protecting parties whom the substantive law considers to be in need of protection. The first policy is best served by a choice-of-law rule that favors validation. The second policy is best served by an unqualified application of the law of the incapable partys domicile. The fact that subsection (1) of section 81.112 authorizes the application of whichever of the two laws (the lex domicilii or the lex causae) validates the contract may give the impression of unduly favoring the first policy at the expense of the second. However, as explained above, this rule is unqualified only in cases falling within pattern (3), above, namely cases in which the contracting party is capable of contracting under the law of his domicile. In such cases, the tilt towards validation is easily defensible. A rule imposing an incapacity is a collective societal judgment about a persons maturity, soundness of mind, or need of protection. It reflects an a priori legislative determination that the need to protect the incapable overrides the general policy of promoting the security of transactions. When the society in which a person lives has determined that he does not need any protection, there is no persuasive reason to invoke the protection provided for other persons by the law of another state on his behalf (even if that law would otherwise be the lex causae) and thereby defeat the policy of promoting security of transactions. On the other hand, in cases falling within pattern (4) (cases in which the contracting party is incapable under the law of her domicile but capable under the lex causae), the validation rule of subsection (1) is qualified by the exception of subsection (2). Although this exception would not have helped Mr. Kaufman, it would help other more deserving parties falling within this category, especially since it articulates an objective standard (should have known). Thus, subsection (2) of section 81.112 provides a fact-sensitive corrective to the validation tilt of subsection (1). 3. Consent (O.R.S. Section 81.115) Section 81.115 applies to issues of consent to the contract. This encompasses both the existence and the validity of a partys consent, that is, whether a party has signified its assent to be bound by the contract, but also whether such signification reflects that partys own genuine volition. Thus, the scope of section 81.115 encompasses rules concerning offer and acceptance, vices of consent such as fraud, duress, or error, and the consequences of such vices of consent. Subsection (1) of section 81.115 provides that the issues of whether a party expressed his consent to the contract and whether such consent was free of vices are determined under the law applicable to those issues under sections 81.105, 81.130 or 81.135, whichever section is applicable to the particular contract. From this provision flow two corollaries, one affirmative and one negative. The affirmative corollary is that these are distinct issues that call for separate analysis under section 81.130. The negative corollary is that these issues, like the issues of capacity, are not governed by sections 81.120 and 81.125, and thus they do not fall within the scope of party autonomy. Consequently, the problem of bootstrapping does not arise with regard to these issues. Subsection (2) of section 81.115 applies to consumer contracts and employment contracts. It enables consumers or employees to invoke the protection of the consent laws of their home state, and thus to avoid a contract that would be binding under subsection (1) if their assent to the contract was obtained in their home state, or if their conduct leading to the contract was primarily confined to that state. VI. Party Autonomy A. The Principle Section 81.120 enunciates the general principle of party autonomy and defines its scope, mode of expression, and other modalities. Party autonomy is a term of art which, in the multistate context, stands for the notion that, within certain limits, the legal system should enforce agreements by which contracting parties designate the law that will govern their rights and obligations under the contract. This principle is almost as ancient as conflicts law itself, and is perhaps the most widely accepted [conflicts] rule of our time. Even so, American conflicts law was rather slow in sanctioning this principle. In 1825, the US Supreme Court referred in passing to a principle of universal law that a contract is governed by the law with a view to which it was made, thus recognizing the notion of an implied choice of law by the parties. Although this recognition should have made recognition of an express choice of law even easier, cases involving such a choice did not begin to appear until the end of the nineteenth century. In the 1930s, the drafters of the First Restatement rejected party autonomy on the ground that it amounted to a license for private legislation, although by that time party autonomy was taking roots in both transactional and judicial practice. Recognizing this reality, the Restatement (Second) formally sanctioned and codified the principle of party autonomy, thus bringing American law in accord with most other western legal systems. Today, choice-of-law clauses have become commonplace in multistate contracts. Given the universality of this principle, there is no need to defend it here. Instead, the following discussion focuses on the specifics of the Oregon version of this principle. 1. Scope of Party Autonomy a. Specific Exemptions Through its introductory except clause, subsection (1) of section 81.120 expressly exempts certain contracts and certain issues from the parties power to pre-select the applicable law. The first exception encompasses those contracts that, under section 81.105, are governed by Oregon law because they have the specified contacts with Oregon. The second exemption applies to all contracts and involves issues of form, capacity, and consent. As discussed earlier, these issues are governed by the law designated by sections 81.110, 81.112, and 81.115, respectively. By excluding these issues from the scope of party autonomy, section 81.120 avoids the bootstrapping phenomenon. When, under the normally applicable law, a contract is invalid as to form, capacity, or consent, the invalidity also affects any choice-of-law clause contained in the contract. A party who lacks contractual capacity, under section 81.112, may not confer on itself capacity simply by choosing another law. Likewise, a party who did not validly consent to a contract, under section 81.115, should not be bound by it, even if the contract purports to choose another law. b. Implied Exceptions: Non-Contractual Issues Subsection 1 of section 81.120 also confines party autonomy to the parties contractual rights and duties. The use of the italicized word was deliberate: it is intended to exclude from the scope of party autonomy non-contractual issues, such as tort claims, unfair trade practices, statutes of limitation, attorney fees, and prejudgment interest. It is one thing to allow parties to jointly pre-select the law that will govern their contractual dispute and another thing to allow them to do so with regard to a future tort between them. The latter is a much more serious matter, especially in contracts in which one party is likely to be in a weak bargaining position, such as employment contracts, consumer contracts, or insurance contracts. The protection traditionally afforded to these parties should not be evaded through the ostensible choice of another law. For these reasons, the prevailing view in other countries has been that the parties to a tort dispute may choose the applicable law only after the occurrence of the tort. In the United States, the question of whether a choice-of-law clause can encompass noncontractual issues arising from the same contractual relationship that is the object of the clause has not received a systematic treatment. Although the Restatement (Second) limits party autonomy to contractual issues, most courts that have encountered this question assume it to be simply one of contractual intent and examine whether the phrasing of the clause is broad enough to include those issues. Under this logic, a clause that explicitly encompasses any and all disputes between the parties is deemed to include tort claims, while a generic, less categorical clause is not. At the same time, however, courts tend to scrutinize clauses that purport to encompass tortlike issues much more closely than clauses confined to purely contractual issues. Yet, as Sutton v. Hollywood Video Entertainment Corporation, graphically illustrates, this important question should not depend on the breadth of the contracts language but rather on the breadth of the parties contractual power. In Sutton, the clause in question was very broad and all-encompassing. It provided that any dispute arising out of or relating in anyway to [parties] relationship would be governed by Oregon law. Sutton was a tort action for malicious prosecution and false imprisonment against a Maryland video store owner who had the plaintiff arrested for allegedly stealing merchandise the previous night. In addition to being completely innocent, the plaintiff was a customer/member of the defendants video store in the sense that he had applied for and received a membership card allowing him to rent video cassettes. The membership agreement contained the above quoted clause, which the defendant invoked in its motion to dismiss the plaintiffs tort action, or alternatively to stay litigation and compel arbitration. As incredible as the defendants argument was, it took the court three pages to conclude that it was untenable. Plaintiffs tort claims, said the court, have nothing whatsoever to do with the video rental contracts. It is logically untenable, said the court, that the membership agreements were meant to cover . . . accusations of theft. Taken to an extreme, Defendants reading of the arbitration clause would require arbitration of claims such as a [defendants] store ceiling falling in on customers, or a [defendant stores] employee brutally attacking a customer . . . who has signed a membership agreement. To avoid these problems, the new Oregon Act specifically confines party autonomy to contractual issues only. 2. Mode of Expression To be recognized under section 81.120, the choice of law must be express or must be demonstrated clearly from the terms of the contract. An express choice need not be written, although oral choice-of-law agreements seem to be rare in contemporary practice, or at least in litigation. The balance of the quoted phrase recognizes an implied choice of law, but not a hypothetical one. In other words, it does not suffice to demonstrate that, if they had thought about the matter, the parties would have chosen a particular law. Rather it is necessary to demonstrate an extant, albeit unexpressed, choice of law. Moreover, the choice must be demonstrated from the terms of the contract. It does not suffice if such a choice appears from the conduct of the parties. The Oregon drafters rejected a phrase to that effect which was contained in the initial draft. Finally, the use of the verb demonstrated, and the whole tenor of the phrase implies, that the existence of the choice of law must be shown affirmatively by the party who asserts it rather than deduced by the court on its own motion. In the interest of certainty but also for other reasons, section 81.120 requires an express choice of law in two specific circumstances: (a) in standard-form contacts drafted primarily by one party, subsection (2) requires that the choice of law be express and conspicuous; and (2) in cases in which the parties agree on the applicable law after the making of the initial contract or they agree to modify the choice they made earlier, subsection (3) requires that the agreement be express. 3. Partial, Multiple, or Subsequent Choice Subsection (1) of 81.120 states the obvious when it provides that the parties may choose one or more laws to govern the contract, or they may choose a law for only part of the contract. For example, the parties may agree on the law that will govern the performance of the contract and say nothing about the law that will govern other aspects of the contract. In such a case, their choice will be honored if it is otherwise valid, and the rest of the contract will be governed by the law applicable to the particular issue under the Acts other provisions. Likewise, in a contract that is to be performed in several states, the parties may agree that details of performance are to be governed by the law of the state in which the particular performance is to be rendered, while other aspects of the contract will be governed by another law. Both a partial choice of law and the choice of more than one law may result in dpeage, namely, the application of different laws to different parts or aspects of the contract. This is a seemingly anomalous phenomenon but one that has long been recognized by the case law. For example, even under the traditional system, courts applied the law of the place of making to issues of contract validity and the law of the place of performance to issues of performance. If the parties partial or multiple choice-of-law is otherwise valid, there is little reason to disregard it merely because it leads to dpeage. Finally, subsections (3) and (4) of Section 81.120 restate some self-evident contract principles. Parties are free to agree on the applicable law after the making of the initial contract or to modify an agreement made earlier. Unless they specify otherwise, such an agreement or modification relates back to the initial contract or other agreement, but it may not adversely affect the rights of third parties. 4. The Chosen Law In contrast to other codifications which speak of the law of the state chosen by the parties, section 81.120(1) speaks of the law. . . that the parties have chosen and deliberately refrains from attaching the chosen law to a state. When this provision is read together with the definition of law provided in section 81.100(1), it is clear that the parties may choose not only the law of a state or country, but also international law. Moreover, the accompanying Reporters comments state that the parties may even choose a-national or non-state norms, such as the Unidroit Principles of International Commercial Contracts. Although this statement is not expressly supported by the text of sections 81.100 or 81.120, it is certainly within the spirit of the principle of party autonomy as enunciated in section 81.120. Naturally, the choice of non-state norms will be subject to the same limitations as the choice of state law. The definition of law contained in section 81.100(1) also provides that [e]xcept for references to the law of Oregon, law does not include rules governing choice of law. Thus, whenever the parties choose the law of a state other than Oregon, their choice should be taken to encompass only the internal law of that state, excluding its conflicts law. To be sure, nothing prevents the parties from including that states conflict law in their choice but, unless they expressly do so, it is more logical to assume that they intended to avoid rather than to invite the complexities of renvoi. For the same reason (i.e., the parties presumed, even if rebuttable, desire to avoid the complexities of the choice-of-law question), the contractual choice of Oregon law also must be confined, in the absence contrary agreement, to the internal law of Oregon. This should be so despite the above quoted phrase [e]xcept for references to the law of Oregon in section 81.100(1). That phrase is meant for all cases in which the Act itself makes a reference to the law of Oregon, but not for cases in which the parties agree on the application of the law of Oregon. Finally, the contractual choice of another states law should be confined to that states substantive law and should not be taken to encompass its procedural law. This question has particular practical relevance with regard to statutes of limitations, which most American states continue to characterize as procedural. Most cases that have considered this issue have concluded that the choice-of-law clause did not include the chosen states statute of limitation. To be sure, the distinction between substantive and procedural rules is often not as clear as one might wish. What should be clear, however, is that rules that are unquestionably procedural, such as those regulating the conduct of the proceedings in the courtroom, should be beyond the parties contractual power. The parties should not be allowed, through a choice-of-law agreement, to displace those rules that reflect the forum states judgment of how to efficiently conduct litigation in its courtrooms, or how to ascertain the truth or evaluate the evidence. Naturally, this position should becomes less and less categorical as the the substantive shades off by imperceptible degrees into the procedural. 5. The Chosen State When the parties exercise their power to choose the law of a state, they may choose any state or country regardless of contacts or relationships. Indeed, unlike the corresponding provisions of other codifications and the Restatement (Second) but consistently with new trends, section 81.120 of the Oregon Act does not require that the state of the chosen law have any particular factual or legal connection to the transaction or the parties. The main reason for requiring such a connection is that the choice of an unconnected law might extend party autonomy to intra-state contracts and allow parties to evade the otherwise applicable domestic law. However, this is not a problem under the Oregon Act which, as noted earlier, applies only to multistate contracts. In any event, experience has not shown many instances in which the parties chose the law of a totally unrelated state. Moreover, the fact that party autonomy is supervised and controlled in a substantive manner through several provisions of the Act, especially section 81.125, obviates the need for additional, especially geographical, controls. This is consistent with the new trends in both the United States and elsewhere. For example, the 2001 Revision of Article 1 of the U.C.C. allows choice-of-law clauses in non-consumer contracts whether or not the transaction bears a relation to the State [or Country] designated. B. The Limitations (O.R.S. Section 81.125) The notion that party autonomy must be subject to some limitations is as widely accepted as party autonomy itself. What is lacking is a consensus on how these limitations should be defined and how far they should go. The laws of three potentially different states may be involved in this question: (a) the law of the forum state (hereafter lex fori); (b) the law chosen by the parties under section 81.120 (hereafter chosen law); and (c) the law that, under sections 81.130 or 81.135, would have been applicable to the particular issue in the absence of a valid choice of law by the parties (hereafter lex causae). Obviously, when all three laws coincide in the same state, there is no conflicts problem. Similarly, there is no problem when all three states have the same or similar law on the particular substantive issue, or on the issue of party autonomy, so that the chosen law does not violate limitations imposed by either the lex fori or the lex causae. However, problems begin to emerge when the lex fori or the lex causae (or both) restrict party autonomy more or differently than does the chosen law. The question then is which of these three laws should be used as the measuring stick for delineating the limits of party autonomy. Section 81.125 eliminates both the chosen law and the lex fori as candidates for this role. With regard to the chosen law, it would be circular to say that the parties can choose the law that defines the limits of their autonomy. Also, the lex fori as such should not play an independent role in policing party autonomy, unless of course the lex fori is also the lex causae. This then leaves the lex causae as the only law whose limitations to party autonomy are relevant under section 81.125 in policing the parties choice. As said above, the lex causae is determined through the issue-by-issue analysis of the general rule of section 81.130, or through the presumptive rules of section 81.135, whichever of the two sections is applicable to the particular contract. Section 81.125 articulates one general limitation to party autonomy in clause (c) of subsection (1), and two specific limitations in clauses (a) and (b), which in some respects are specific manifestations of the general limitation. The specific limitations are those imposed by the law of the state of performance. The chosen law will not be applied to the extent its application would: (a) require a party to perform an act that the state of performance prohibits; or (b) prohibit a party from performing an act that the state of performance requires. The fact that both clauses (a) and (b) use of the verb require (as opposed to permit) suggests that these limitations will come into operation only rarely. This makes the general limitation of clause (c) more important. The general limitation is that the chosen law will not be applied to the extent its application would contravene an established fundamental policy of the lex causae. The words established and fundamental were the objects of long discussions in the drafting group, especially as compared to the similar phrase used in section 187(2) of the Second Conflicts Restatement, which Oregon courts followed at the time. Indeed, this particular section of the Restatement (Second) is followed in almost all states of the United States, including the states that still follow the lex locus contractus rule, and other states that have not adopted the Restatement for other issues. Thus, a brief comparison with this Restatement section is appropriate. Section 187(2) of the Restatement provides that the chosen law will not be applied: (1) if its application would be contrary to a fundamental policy of the lex causae, and (2) if the state of the lex causae has a materially greater interest in applying its law to the particular issue than the state whose law the parties chose. Thus, under the Restatement, the party who challenges the application of the chosen law must overcome two obstacles: that party must demonstrate: (1) that the chosen law contravenes a fundamental policy of the lex causae; and (2) that the state of the lex causae has a materially greater interest in applying its law. In drafting section 81.125 of the Oregon Act, the decision was made to remove the second obstacle. This is because, in identifying the state of the lex causae under section 81.130, one would take account of the involved states respective interests. Thus, the conclusion that state X is the state of the lex causae often includes a conclusion that that state has a materially greater interest. At the same time, in identifying the lex causae under section 81.130, one should also take account of factors other than the narrow interests of the involved states and, in so doing, one may conclude that the law of state X is the most appropriate under the circumstances (i.e., it is the lex causae), regardless of that states interests. The discussion then focused on whether section 81.125 should use the qualifier fundamental or some other adjective to convey the elementary notion, on which everybody agreed, that not all differences between the chosen law and the lex causae should be sufficient to defeat party autonomy. The decision was to use the term fundamental but, unlike the Restatement (Second), to define the meaning of this term. Justice Hans Linde proposed that the term fundamental should be further qualified with the adjective established, so that only an established fundamental policy of the lex causae should defeat party autonomy. Thus, section 81.125(2) defines as fundamental a policy that reflects objectives or gives effect to essential public or societal institutions beyond the allocation of rights and obligations of parties to a contract at issue. The word established is not defined by it is intended to convey the notion that only a fundamental policy that is already enunciated, statutorily or judicially, can defeat party autonomy, as opposed to a policy that the court invents ad hoc in the particular case in which the choice-of-law issue arises. The problem with this requirement is that it is almost incompatible with judicial instinct, at least in the American common-law tradition, and may prove unduly restrictive. In many cases, especially when the court encounters a novel problem, the court may appropriately conclude that a given policy is fundamental, even though it has not, as yet, been articulated by statute or precedent, precisely because of the novelty of the problem. One such example is the issue of contracts for surrogate motherhood. When American courts encountered such contracts in the late 1980s and early 1990s, there were no statutes or precedents expressly addressing the enforceability of such contracts, which in turn depended on the existence of a fundamental policy limiting the principle of contractual freedom. The courts did not and could not wait for a statute or a precedent to articulate such a policy. Rather, the courts examined relevant statutes and precedents and extrapolated from them a general principle or policy as to whether the legal order should enforce or not enforce those contracts. If the courts have this power in domestic cases, there is no reason to deny them this power in multistate cases, at least when the fundamental policy invoked is a policy of the forum state. VII. The General Rule (O.R.S. Section 81.130) Section 81.130 is the general and the residual rule for the entire Act. As its introductory phrase indicates, this rule applies [t]o the extent that an effective choice of law has not been made by the parties pursuant to ORS 81.120 or 81.125. Thus, Section 81.130 applies when: (1) the parties have not chosen the applicable law; (2) they have chosen a law for only part of their contract; or (3) the attempted choice of law is ineffective, in whole or in part, because: (a) it is not expressed in the mode prescribed by Section 81.120; or (b) it exceeds the limits to party autonomy prescribed by Section 81.125; or (c) it suffers from a defect of form ( 81.110), capacity ( 81.112) or consent ( 81.115). Moreover, even in cases in which there has been no effective choice of law by the parties, section 81.130 applies only to the extent it is not displaced by the presumptive rules of section 81.135 or the rules of section 81.105. The introductory paragraph of section 81.130 enunciates the goal of the choice-of-law process for contract conflicts, while the balance of the section prescribes the process or method for achieving that goal, and the factors one should consider in reaching that goal. 1. The Goal, and the Catch-Phrase The goal is to identify the law which, with regard to the issue in question is the most appropriate for the resolution of that issue in light of the multistate elements of the contract. The phrase most appropriate law is likely to become the catch-phrase by which commentators will describe the Oregon Act, without necessarily paying attention to the specifics that follow the phrase. Some authors may be tempted to draw comparisons with acoustically similar phrases, such as Professor Morris proper law concept, and at least one author has already seen this phrase as signaling a tilt towards material justice. There is no denying that the choice of a catch-phrase may carry a great deal of symbolism, and that the choice of this particular phrase was not accidental. In fact, the choice was made after considerable debate. However, the two main reasons for choosing this phrase were: (1) because it is ideologically neutral; and (2) because it is different than comparable catch-phrases used by other codifications and methodologies. Indeed, this phrase disassociates the Oregon Act from Professor Curries interest analysis, from a significant-contacts or significant-relationship analysis like the Second Restatement, and from material-justice approaches, such as Leflars better-law approach. In fact, the drafting group specifically rejected a proposal to include in section 81.130 a reference to material justice considerations. It is no coincidence that the phrase appropriate law is preceded by the phrase in light of the multistate elements of the contract. This means that the objective is to find the law which, in light of the multistate elements of the contract, is the most appropriate for resolution of the particular issue. Thus, to use Gerhard Kegels terms, the goal of the choice-of-law process under the Oregon Act is to find the spatially best solution (conflicts justice), rather than the materially best solution (material justice). 2. The Process The method or process for identifying the most appropriate law is prescribed in the second sentence of section 81.130, which, in its three subdivisions, describes the three steps the decisionmaker should follow. The first step is to identify the potentially involved states through their contacts to the transaction or the parties. Subdivision (1) lists the contacts likely to be relevant, but that enumeration is clearly illustrative. The second step is to identify those of the involved states laws that are relevant to the particular issue and then, through the resources of statutory interpretation, to ascertain and articulate the policies embodied in each of those laws. The third step is to assess and compare the relative strength of those policies and to evaluate their pertinence to the particular issue, with the goal of selecting the law which, in light of the multistate elements of the contract, is the most appropriate for the resolution of that issue. What is to be evaluated is not the wisdom or goodness of a state policy, either in the abstract or in comparison with the policy of another state, but rather the strength and pertinence of this policy at the multistate level. A legislative policy that a state strongly espouses for intra-state cases may in fact be attenuated in a particular multistate case that has only minimal contacts with that state. Similarly, the same policy may prove far less pertinent if the case has sufficient contacts with that state, but not the type of contacts that actually implicate that policy. Before choosing between or among the laws of the involved states, the decisionmaker should ask how the application of each law would help accomplish or retard the desiderata listed in clauses (a) and (b) of subdivision 3, such as [m]eeting the needs and giving effect to the policies of the interstate and international systems. This is a much more proactive admonition than the self-evident requirement of complying with the limits that the federal Constitution prescribes for state choice-of-law decisions. What is constitutionally permissible is not necessarily appropriate from the perspective of choice of law. One should strive for decisions that not only stay within the constitutional limits but also are deferential to the needs and policies of the interstate and international systems, such as discouraging forum shopping and aiming for interstate and international uniformity of result. Along the same lines, section 81.130(3)(b) expressly reminds the decisionmaker of the need of minimizing the adverse effects on strong legal policies of other states. Thus, in searching for the most appropriate law under section 81.130, one should consider which choice of law would produce the least adverse consequences on the strongly held policies of the involved states. In this sense, the approach of section 81.130 is an approach that focuses on consequences. It aspires to identify the state which, in light of its policies rendered pertinent by its factual and other relationship to the contract, the underlying transaction and the parties would bear the most serious legal, social, economic, and other consequences if its law were not applied to the particular issue. However, section 81.130 also looks beyond state interests and the impact of the choice-of-law decision on those interests. Because the price of choice-of-law decisions is primarily paid by individual parties, section 81.130(3)(b) reminds the decisionmaker to keep in mind the substantive policy of protecting a party from undue imposition by another party, and the substantive/multistate policy of [f]acilitating the planning of transactions. Last but not least, section 81.130(3)(b) also refers to the justified expectations of the parties, but does so in a more precise way than comparable formulations in the Restatement (Second) and other codifications. Rather than speaking of expectations in general (such as the expectation of having a binding contract), this provision keeps the focus on the multistate nature of the case by speaking of expectations concerning which states law applies to the issue. The message is clear. All other factors being equal, the parties should not be subjected to a law whose application they had no reason to anticipate. 3. Application The Oregon case Lilienthal v. Kaufman is a good vehicle for illustrating the intended operation of section 81.130. As noted earlier, Lilienthal involved a loan contract made in California between Mr. Lilienthal, a California domiciliary, and Mr. Kaufman, an Oregon domiciliary. The contract was valid under California law but invalid under Oregon law because Mr. Kaufman had been declared a spendthrift in Oregon and, under an Oregon statute, this made his contracts voidable at the behest of his guardian. The Oregon Supreme Court found a true conflict between Oregon and California law and applied Oregon law, invalidating the contract. a. Identifying the Involved States The first task under section 81.130 is to identify the states that have a relevant connection with the transaction or the parties. The illustrative list of relevant connections includes the place of negotiation, making, performance or subject matter of the contract, or the domicile, habitual residence or pertinent place of business of a party. In Lilienthal, the involved state were only two: California was the place of the negotiation, formation, and intended performance of the contract, as well as the domicile of one of the contracting parties, Mr. Lilienthal, the creditor-plaintiff. Oregon was the domicile of the other party, Mr. Kaufman, the debtor-defendant. b. Defining the Pertinent Issue As signified by the repeated use of the word issue, both section 81.130 and the whole Act contemplate and require what is known in the conflicts literature as an issue-by-issue analysis. This means that the decisionmaker should focus on the particular issue as to which a conflict is claimed to exist between the laws of the involved states. When a conflict exists with regard to only one issue, one should focus on the factual contacts and policies that are pertinent to that issue. When a conflict exists with regard to more than one issue, each issue should be analyzed separately, because each may implicate different states, or may bring into play different policies. Seen from another angle, each involved state may not have an equally strong claim in regulating all issues in the case, but only those issues that actually implicate its policies in a significant way. This issue-by-issue analysis is an integral feature of all modern choice-of-law methodologies. This focus on the particular issue facilitates a more nuanced, individualized, and thus more rational, resolution of conflicts problems. In Lilienthal, there was only one issue with regard to which the laws of Oregon and California conflicted. Mr. Kaufman was incapable of contracting under the law of his home state of Oregon but capable under the law of California, where the contract was negotiated and formed. Thus, the conflict was confined to the issue of contractual capacity. c. Identifying the Relevant State Policies The next step it to identify the policies underlying any apparently conflicting laws . . . that are relevant to the issue with regard to which a conflict exists. This was a relatively easy task in Lilienthal. The policy underlying the California rule, which considered Mr. Kaufman capable of contracting and would uphold the contract, was the general policy of enforcing contracts and protecting party expectations. In contrast, the policy underlying Oregons spendthrift rule, which would make the contract voidable because of defendants status as a spendthrift, was a policy of subordinating this general and otherwise important policy to the more specific policy of protecting the spendthrifts family and ultimately Oregons public assistance funds. d. Evaluating the Relative Strength and Pertinence of the Conflicting Policies The next step of the process is to evaluate the relative strength and pertinence of the conflicting state policies in light of three sets of factors, of which section 81.130(3) lists only two. The missing set of factors are the respective contacts of the involved states to the transaction and the parties. Indeed, one cannot evaluate a policys pertinence or even strength in the abstract, without considering the contacts of the state that has that policy and comparing them with the contacts of the other state. This consideration and comparison is implicit in the whole tenor of section 81.135. (i) The relevant contacts, again. As noted earlier, the relevant contacts in Lilienthal were the domiciles of the two parties in Oregon and California, respectively, and the negotiation, formation, and intended performance of the contract in California. Mr. Kaufmans domicile in Oregon was an important contact because it rendered pertinent Oregons policy in protecting his family. Although this is antiquated by todays standards, this was Oregons policy at the pertinent time. Rules of contractual incapacity reflect a societys determination about the maturity, soundness of mind, and need of protection of various classes of persons. They are also conscious legislative determinations that the need of protecting particular classes of persons and their families is strong enough to override the general policy of promoting the security of transactions. In delineating the interstate scope of operation of these rules, it is appropriate to begin with the premise that they have been enacted with a view toward protecting people domiciled in the enacting state rather than with the idea of affecting contracts made therein by people domiciled elsewhere. Consequently, the enacting state has, in principle, an interest in applying these rules in every contract which, whether made within or without its territory, involves one of its domiciliaries whom it considers in need of protection. This is not to say, however, that this interest will always prevail. The interest of one state in protecting the incapable party may run contrary to the interest that another, and sometimes the same, state may have in, for instance, protecting the justified expectations of the other party and the security of transactions in general. In Lilienthal, Oregons specific interest in protecting the family of the incapable party runs contrary not only to Californias interest in enforcing the contract, but also contrary to Oregons general interest in enforcing contracts and encouraging out-of-state financiers to extend credit to Oregonians. The fact that Mr. Kaufman went to California and there negotiated and concluded this contract with a domiciliary of that state has a bearing on the expectations of the parties and the interests of their respective states in protecting those expectations. Although Mr. Lilienthal knew that Mr. Kaufman was an Oregon domiciliary, Mr. Lilienthal had no reason to suspect that Oregon, or for that matter any state of the United States, would have such an obscure rule that considers an adult person without any visible physical or mental infirmities to be incapable of contracting. Hence, Mr. Lilienthal would have been justified to expect that the contract would be enforceable. As for Mr. Kaufman, we can only speculate on what his expectations might have been and, in any event, it is somewhat anomalous to speak of the expectations of a person who is deemed to be incapable of contracting. Be that as it may, if Mr. Kaufman had any expectation that he could carry Oregons spendthrift rule to California and there inflict it on Mr. Lilienthal, this would be an expectation that the legal order should not sanction. Even assuming that it would be more appropriate to focus on the expectations of the spendthrifts guardian or family, it is hard to argue that, having allowed Mr. Kaufman to entrap an Oregon creditor, Mr. Olshen, they should also expect that the same trap would work against an out-of-state creditor. It is also worth noting that, although the Lilienthal contract was a small-scale, one time contract, it was not a consumer contract. The fact that it was not a consumer contract renders less pertinent the policy of protecting the weak party. The fact that it was a small-scale, one-time contract explains why Mr. Lilienthal should not be expected to consult legal counsel or research Oregon law. (ii) The other factors. The evaluation of the strength and pertinence of the conflicting policies must also take into account two other sets of factors listed in section 81.130(3). The first is to examine the impact of the choice-of-law decision in [m]eeting the needs and giving effect to the policies of the interstate and international systems. This factor clearly supported the application of California law in Lilienthal. Indeed, applying California law under the facts of this case would not only satisfy the needs and policies of the interstate system, but would also support Oregons own general policy of enforcing contracts. True enough, that policy had been subordinated to the specific need of protecting the spendthrifts family when the Oregon legislature decided to enact the spendthrift rule. In cases like Olshen v. Kaufman, which do not contain any foreign elements, an Oregon court is bound to respect this legislatively-established balance between the two conflicting policies and must apply the spendthrift rule. However, in multistate cases like Lilienthal, courts have the freedom to do otherwise, and this freedom is now confirmed or conferred by the same legislature that enacted the spendthrift rule. In enacting section 81.130, the Oregon legislature has entrusted Oregon courts with the task of determining, through the choice-of-law process, the appropriate territorial reach of the states substantive rules, such as the spendthrift rule, and to do so by considering the multistate nature of the particular case and the impact of the courts choice-of-law decision on the policies and needs of the interstate and international systems. These considerations make it clearer that Oregons unique spendthrift rule did not and should not encompass this multistate case. The presence of multistate elements in Lilienthal either altered or rendered inapplicable the legislatively-established balance between the general Oregon policy of enforcing contracts and the specific policy of protecting the spendthrifts family. These elements added strength to the general policy and detracted strength from the specific policy. The latter policy should not be extended against unsuspecting citizens of other states who had no reason to be aware of it. As a trading member of the interstate union and the international community, Oregon has every reason not to discourage foreign creditors from extending credit to Oregonians. Finally, Section 81.130(3)(b) instructs the court to consider the impact of the choice-of-law decision on certain substantive and multistate policies. The first policy, [f]acilitating the planning of transactions, clearly points to the application of California law, which would uphold the contract. The same is true of the policy of giving effect to justified expectations of the parties concerning which states law applies to the issue. As noted earlier, the fact that Mr. Kaufman went to California and negotiated and concluded the contract there suggest that, even he (and even more Mr. Lilienthal) must have expected California law to apply. The third policy, protecting a party from undue imposition by another party, is relevant in consumer contracts and other similar contracts in which one party is likely to be in a weaker bargaining position. However, not only was this not a consumer contract, but there was no evidence that Mr. Kaufman was in a weak bargaining position or that Mr. Lilienthal was guilty of any undue imposition on Mr. Kaufman. Thus, even this policy does not militate in favor of the application of the Oregon rule. Finally, the last policy of minimizing adverse effects on strong legal policies of other states depends in part on which of the two states policies is more strongly held. In Lilienthal, the court determined that Californias and Oregons policies were equally strong and held that in such a case the public policy of Oregon should prevail because [c]ourts are instruments of state policy and must apply the rule which will advance the policies or interests of Oregon. This was a faithful application of Brainerd Curries interest analysis, including its notorious forum chauvinism, which subsequent Oregon cases have abandoned, and which the new Act denounces. In light of this, and all the factors discussed earlier, there should be little doubt that, if Lilienthal were to be decided under the new Act, California law should be applied as the most appropriate law for the resolution of the particular issue. VIII. Presumptive Rules (O.R.S. section 81.135) Because the choice-of-law process section 81.130 prescribes is labor intensive, and to some extent uncertain, it was thought necessary to provide courts with some measure of certainty and predictability, at least for certain contracts. Section 81.135 does so by enunciating five presumptive choice-of-law rules applicable respectively to the five types of contracts listed therein. These rules, which are modeled after the Puerto Rico draft Code and other codifications, apply only in the absence of an effective choice-of-law clause under sections 81.120 and 81.125, and only with regard to issues other than form, capacity, or consent, which are governed by sections 81.110, 81.112, and 81.115. Furthermore, the presumptive rules do not apply if the contract in question is governed by Oregon law under section 81.105. Finally, each of these presumptive rules may be displaced if the opposing party demonstrates that the application of the law designated by the rule is clearly inappropriate under the principles of ORS 81.130. In such a case, the court will apply the law it considers most appropriate under the principles of section 81.130. For example, in a contract for personal services, either party may demonstrate that, under the principles of section 81.130 it would be clearly inappropriate to apply the law of the state where the services are rendered, and that it would be most appropriate to apply, for example, the law of the state where the employee is domiciled and was hired. IX. Some General Thoughts The Oregon Act made its appearance on the American conflicts scene at a time when the initial enthusiasm for ad hoc approaches that the American conflicts revolution initiated has all but evaporated. In this meta-revolutionary phase, the grand question is how to develop an exit strategy, how to turn the revolutions initial victory into a lasting success. Opinions naturally differ on exactly what the next step should be. For example, in 1999, American conflicts professors devoted their annual meeting to discussing the need for a Third Conflicts Restatement, thus beginning a debate that still continues. Although both the specific debate for a new Restatement and the general debate about the need for rules are inconclusive, it seems that, even among academics, Professor Curries revolutionary aphorism that we are better off without choice of law rules is no longer taken at face value. The pendulum has begun swinging back. This author has argued that the time has come to recognize that the American conflicts revolution has gone too far in embracing flexibility to the exclusion of all certainty, just as the traditional system had gone too far toward certainty to the exclusion of all flexibility. A correction is needed, and a new equilibrium should be sought between these two perpetually competing needs. This author has also argued that it is now necessary and possible to articulate a new breed of smart, evolutionary choice-of-law rules that will accomplish both objectives: (1) restore a proper equilibrium between certainty and flexibility; and (2) preserve the substantive and methodological accomplishments of the revolution. The Oregon Act has been an effort to attain, or at least, approach these goals. Others will judge whether it has succeeded. APPENDIX OREGONS NEW CHOICE-OF-LAW STATUTE FOR CONTRACTS Ch. 164, H.B. No. 2414 of 1991 ORS 81.100-81.135 CONFLICT OF LAWS AN ACT Relating to Conflict of Laws Be It Enacted by the People of the State of Oregon: DEFINITIONS 81.100. Definitions. For the purposes of sections 81.100 to 81.135: (1) Law means any rule of general legal applicability adopted by a state, whether that rule is domestic or foreign and whether derived from international law, a constitution, statute, other publicly adopted measure or published judicial precedent. Except for references to the law of Oregon, law does not include rules governing choice of law. (2) State means the United States, any state of the United States, any territory, possession or other jurisdiction of the United States, any Indian tribe, other Native American group or Native Hawaiian group that is recognized by federal law or formally acknowledged by a state of the United States, and any foreign country, including any territorial subdivision or other entity with its own system of laws. 81. 102. Applicability. ORS 81.100 to 81.135 govern the choice of law applicable to any contract, or part of a contract, when a choice between the laws of different states is at issue. ORS 81.100 to 81.135 do not apply if another Oregon statute expressly designates the law applicable to the contract or part of a contract. ORS 81.100 to 81.135 do not apply to any contract in which one of the parties is a financial institution, as defined by 15 U.S.C. 6827, as in effect on January 1, 2002. CONTRACTS GOVERNED BY OREGON LAW 81.105. Specific types of contracts governed by Oregon law. Notwithstanding any other provision of ORS 81.100 to 81.135, but subject to the limitations on applicability imposed by ORS 81.102, the law of Oregon applies to the following contracts: (1) A contract for services to be rendered in Oregon, or for goods to be delivered in Oregon, if Oregon or any of its agencies or subdivisions is a party to the contract. The application of Oregons law pursuant to this subsection may be waived by a person authorized by Oregons law to make the waiver. (2) A contract for construction work to be performed primarily in Oregon. (3) A contract of employment for services to be rendered primarily in Oregon by a resident of Oregon. (4)(a) A consumer contract, if: (A) The consumer is a resident of Oregon at the time of contracting; and (B) The consumers assent to the contract is obtained in Oregon, or the consumer is induced to enter into the contract in substantial measure by an invitation or advertisement in Oregon. b) For the purposes of this subsection, a consumer contract is a contract for the supply of goods or services that are designed primarily for personal, familial or household use. RULES GOVERNING FORM OF CONTRACT, CAPACITY TO CONTRACT AND CONSENT 81.110. Validity of form. A contract is valid as to form if the contract meets the requirements prescribed either by the law chosen by the parties under ORS 81.120 and 81.125, the law applicable under ORS 81.105, 81.130 or 81.135, or the law of the state from which any party or the partys agent has assented to the contract unless that state has no other connection to the parties or the transaction. 81.112. Capacity to contract. (1) A party has the capacity to enter into a contract if the party has that capacity under the law of the state in which the party resides or the law applicable to this issue under ORS 81.105, 81.130 or 81.135. (2) A party that lacks capacity to enter into a contract under the law of the state in which the party resides may assert that incapacity against a party that knew or should have known of the incapacity at the time the parties entered into the contract. If a party establishes lack of capacity in the manner provided by this subsection, the consequences of the party=s incapacity are governed by the law of the state in which the incapable party resides. 81.115. Consent. (1) A party has consented to a contract if the law applicable under ORS 81.105, 81.130 or 81.135 so provides. (2) In a consumer contract or employment contract, the consumer or employee whose assent to a contract was obtained in the state of the partys residence, or whose conduct leading to the contract was primarily confined to that state, may invoke the law of that state to establish that the party did not consent to the contract or that the consent was not valid by reason of fraud or duress. CHOICE OF LAW MADE BY PARTIES 81.120. Choice of law made by parties. (1) Except as specifically provided by ORS 81.105, 81.110, 81.112, 81.115 or 81.125, the contractual rights and duties of the parties are governed by the law or laws that the parties have chosen. The choice of law may extend to the entire contract or to part of a contract. (2) The choice of law must be express or clearly demonstrated from the terms of the contract. In a standardform contract drafted primarily by only one of the parties, any choice of law must be express and conspicuous. (3) The choice of law may be made or modified after the parties enter into the contract. Any choice of law made or modified after the parties enter into the contract must be by express agreement. (4) Unless the parties provide otherwise, a choice of law or modification of that choice operates retrospectively to the time the parties entered into the contract. Retrospective operation under the provisions of this subsection may not prejudice the rights of third parties. 81.125. Limitations on a choice of law by the parties. (1) The law chosen by the parties pursuant to ORS 81.120 does not apply to the extent that its application would: (a) Require a party to perform an act prohibited by the law of the state where the act is to be performed under the contract; (b) Prohibit a party from performing an act required by the law of the state where it is to be performed under the contract; or (c) Contravene an established fundamental policy embodied in the law that would otherwise govern the issue in dispute under ORS 81.130. (2) For purposes of subsection (1)(c) of this section, an established policy is fundamental only if the policy reflects objectives or gives effect to essential public or societal institutions beyond the allocation of rights and obligations of parties to a contract at issue. LAW APPLICABLE IN THE ABSENCE OF AN EFFECTIVE CHOICE BY THE PARTIES 81.130. General rule. To the extent that an effective choice of law has not been made by the parties pursuant to ORS 81.120 or 81.125, or is not prescribed by ORS 81.105, 81.110, 81.112, 81.115 or 81.135, the rights and duties of the parties with regard to an issue in a contract are governed by the law, in light of the multistate elements of the contract, that is the most appropriate for a resolution of that issue. The most appropriate law is determined by: (1) Identifying the states that have a relevant connection with the transaction or the parties, such as the place of negotiation, making, performance or subject matter of the contract, or the domicile, habitual residence or pertinent place of business of a party; (2) Identifying the policies underlying any apparently conflicting laws of these states that are relevant to the issue; and (3) Evaluating the relative strength and pertinence of these policies in: (a) Meeting the needs and giving effect to the policies of the interstate and international systems; and (b) Facilitating the planning of transactions, protecting a party from undue imposition by another party, giving effect to justified expectations of the parties concerning which states law applies to the issue and minimizing adverse effects on strong legal policies of other states. PRESUMPTIVE RULES 81.135. Presumptive rules for specific types of contracts. To the extent that an effective choice of law has not been made by the parties pursuant to ORS 81.120 or 81.125, or is not prescribed by ORS 81.105, 81.110, 81.112, or 81.115, contracts described in subsection (2) of this section are governed by the law of the state specified in subsection (2) of this section unless a party demonstrates that the application of that law would be clearly inappropriate under the principles of ORS 81.130. (2)(a) Contracts involving the occupancy of real property, the land use of property or the recording of interests in real property are governed by the law of the state where the property is situated. (b) Contracts for personal services are governed by the law of the state where the services are to be primarily rendered pursuant to the contract. (c) Contracts for franchises, as defined in ORS 650.005, except for licensing clauses in such contracts, are governed by the law of the state where the franchise is to operate pursuant to the contract. (d) Licensing contracts and licensing clauses in contracts for franchises, as defined in ORS 650.005, are governed by the law of the state where the licensor has its place of business or residence with the closest connection to the transactions between the parties. For purposes of this subsection, licensing means a grant of a privilege, created by contract, that allows one party, the licensee, to use the property or right of another party, the licensor. (e) Agency contracts are governed by the law of the state where the agents duties are to be primarily performed. MISCELLANEOUS SECTION 11. (1) Except as provided in subsection (2) of this section, ORS 81.100 to 81.135 apply to all contracts, whether entered into before, on or after the effective date of this 2001 Act, unless that application would violate constitutional prohibitions against impairment of contracts. (2) ORS 81.100 to 81.135 do not apply to any choice of law that is at issue in an action or proceeding commenced before the effective date of this 2001 Act [January 1, 2002]. SECTION 12. The unit and section captions used in this 2001 Act are provided only for the convenience of the reader and do not become part of the statutory law of this state or express any legislative intent in the enactment of this 2001 Act. * Dean and Professor of Law, ʮ² College of Law; Member, Oregon Law Commission; LL.B. (Priv. L.), LL.B. (Publ. L.) University of Thessaloniki; LL.M., S.J.D., Harvard Law School.  ADVANCE \r18 \* MERGEFORMAT . The case that launched the revolution is Babcock v. Jackson, 191 N.E.2d 279 (N.Y. 1963), a case involving tort conflict decided by the New York Court of Appeals on May 9, 1963.  ADVANCE \r18 \* MERGEFORMAT . For documentation and discussion of this movement, see Symeon C. Symeonides, The American Choice-of-Law Revolution: Past, Present and Future (2006) [hereinafter The Choice-of-Law Revolution].  ADVANCE \r18 \* MERGEFORMAT . 395 P.2d 543 (Or. 1964). Lilienthal was decided on September 30, 1964. It is discussed infra at text accompanying notes 6669 & 14057.  ADVANCE \r18 \* MERGEFORMAT . Two weeks after Lilienthal, Pennsylvania became the third state to join the revolution in Griffith v. United Air Lines, Inc., 203 A.2d 796 (Pa. 1964), a case involving a tort conflict and decided on October 14, 1964. In 1967, Oregon completed the abandonment of the traditional system by discarding the lex loci delicti rule in tort conflicts. See Casey v. Manson Constr. & Engg Co., 428 P.2d 898 (Or. 1967).  ADVANCE \r18 \* MERGEFORMAT . See Brainerd Currie, Selected Essays on the Conflict of Laws (1963). For a discussion of this approach, as well as its judicial following today, see Symeonides, The Choice-of-Law Revolution, supra note 2, at 1324, 7182.  ADVANCE \r18 \* MERGEFORMAT . See W.H. Barber Co. v. Hughes, 63 N.E.2d 417 (Ind. 1945); Auten v. Auten, 124 N.E.2d 99 (N.Y. 1954). These two cases, as well as a Puerto Rico case, Maryland Casualty Co. v. San Juan Racing Assn, 83 P.R. 538 (1961), adopted the center of gravity approach, which is generally considered the transitional point between the traditional system and modern approaches.  ADVANCE \r18 \* MERGEFORMAT . Lilienthal was methodologically revolutionary in the sense that it opened new ways of thinking about conflict of laws. This does not mean that Lilienthal was correctly decided. For this reason, Lilienthal was overruled by the statute discussed in this Article. See infra text following note 66.  ADVANCE \r18 \* MERGEFORMAT . See Symeonides, The Choice-of-Law Revolution, supra note 2, at 3851.  ADVANCE \r18 \* MERGEFORMAT . Cf. Friedrich K. Juenger, A Third Conflicts Restatement?, 75 Ind. L.J. 403, 403 (2000) ([O]ne finds authors who are at doctrinal loggerheads peacefully united in a single footnote; one encounters prose so turgid and stilted that one suspects that the judge (or more likely the law clerk who actually drafted the opinion) never really grasped the idea behind the particular conflicts approach the court purports to follow.).  ADVANCE \r18 \* MERGEFORMAT . See American Law Institute, Restatement of the Law: Conflict of Laws (1934).  ADVANCE \r18 \* MERGEFORMAT . See Currie, Selected Essays, supra note 5, at 180 (The [traditional] rules . . . have not worked and cannot be made to work . . . . But the root of the trouble goes deeper. In attempting to use rules we encounter difficulties that stem not from the fact that the particular rules are bad . . . but rather from the fact that we have such rules at all.). See also id. at 183 (We would be better off without choice-of-law rules.).  ADVANCE \r18 \* MERGEFORMAT . P. John Kozyris, Interest Analysis Facing Its Critics, 46 Ohio St. L.J. 569, 578 (1985).  ADVANCE \r18 \* MERGEFORMAT . Id. at 580.  ADVANCE \r18 \* MERGEFORMAT . See id. (any system calling for open-ended and endless soul-searching on a case-by-case basis carries a high burden of persuasion); Maurice Rosenberg, Comments on Reich v. Purcell, 15 UCLA L. Rev. 641, 644 (1968) (The idea that judges can be turned loose in the three-dimensional chess games we have made of [conflicts] cases, and can be told to do hand-tailored justice, case by case, free from the constraints or guidelines of rules, is a vain and dangerous illusion.).  ADVANCE \r18 \* MERGEFORMAT . See Patrick J. Borchers, Empiricism and Theory in Conflicts Law, 75 Ind.L.J.509, 509 (2000) ([T]he extreme flexibility of the modern approaches probably brings increased litigation costs, in particular through the need to prosecute appeals. Because cases settle (at least for economically rational litigants) when the parties assessments of the value of the case converge to within the expected cost of pursuing the case to judgment, the everpresent wild card of choice of law may discourage settlement.).  ADVANCE \r18 \* MERGEFORMAT . See Eugene F. Scoles, Peter Hay, Patrick J. Borchers & Symeon C. Symeonides, Conflict of Laws 107108, 789790 (4th ed. 2004); Patrick J. Borchers, Back to the Past: Anti-Pragmatism in American Conflicts Law, 48 Mercer L. Rev. 721, 724 (1997); P. John Kozyris, The Conflicts Provisions of the ALIs Complex Litigation Project: A Glass Half Full?, 54 La. L. Rev. 953, 956 (1994) (Conflicts theorists . . . have been notoriously indifferent to the issue of efficiency, treating every case as a unique specimen calling for custom-made handling on the tacit assumption that litigational resources are infinite.); Eirn A. OHara & Larry E. Ribstein, From Politics to Efficiency in Choice of Law, 67 U. Chi. L. Rev. 1151 (2000); Shirley A. Wiegand, Fifty Conflict of Laws Restatements: Merging Judicial Discretion and Legislative Endorsement, 65 La. L. Rev. 1 (2004); see also Kaczmarek v. Allied Chem. Corp., 836 F.2d 1055, 1057 (7th Cir. 1987) (Posner, J.).  ADVANCE \r18 \* MERGEFORMAT . See Scoles, Hay, Borchers & Symeonides , supra note 16, at 107 (Contradictory results in the case law, confusion, and also the homeward trend have been the resulting consequences.).  ADVANCE \r18 \* MERGEFORMAT . Kozyris, Interest Analysis, supra note 12, at 580.  ADVANCE \r18 \* MERGEFORMAT . Yvon Loussouarn & Pierre Bourel, Droit International Priv 142153 (7th ed. 2001).  ADVANCE \r18 \* MERGEFORMAT . See P. John Kozyris, Conflicts Theory for Dummies: Aprs le Deluge, Where Are We on Producers Liability?, 60 La. L. Rev. 1161, 1162 (2000) ([T]elling the courts in each conflicts case to make a choice and fashion the applicable law ad hoc and anew (i.e., without legislative or precedential direction) on the basis of what is right (just, proper, good, suitable, interested, etc.), as is often done under the prevailing conflicts theories, appears to me not only inconsistent with the basic principles of separation of powers, not only burdensome and potentially arbitrary beyond reason, not only disorienting to the transacting person, but also essentially empty of meaning. . . . [U]npredictable law is not law to begin with.).  ADVANCE \r18 \* MERGEFORMAT . In anthropomorphic terms, [t]he conflicts revolution has been pregnant for too long. The conflicts misery index, which is the ratio of problems to solutions, or of verbiage to result, is now higher than ever. P. John Kozyris, Foreword and Symposium on Interest Analysis in Conflict of Laws: An Inquiry into Fundamentals with a Side Glance at Products Liability, 46 Ohio St. L.J. 457, 458 (1985).  ADVANCE \r18 \* MERGEFORMAT . Established by statute, the Commission is Oregons official law reform agency, although it is housed at ʮ² College of Law under an agreement between the State and ʮ² and is directed by a member of the Willamette faculty, Professor Jeff Dobbins. For the history of the Commission and its work in the last ten years, see David R. Kenagy, The Oregon Law Commission at Ten: Finding Vision for the Future in the Functions of the Past, 44 Willamette L. Rev. 169 (2007). David Kenagy was the Commissions first executive director.  ADVANCE \r18 \* MERGEFORMAT . The only other state to enact a comprehensive choice-of-law codification was Louisiana, in 1991. See Louisiana Civil Code, Book IV, enacted into law by Act 923 of 1991, effective January 1, 1992. For a discussion of the contract provisions by the codifications drafter, see Symeon C. Symeonides, Louisiana Conflicts Law: Two Surprises, 54 La. L. Rev. 497 (1994). For judicial applications of the codification, see Patrick J. Borchers, Louisianas Conflicts Codification: Some Empirical Observations Regarding Decisional Predictability, 60 La. L. Rev. 1061 (2000).  ADVANCE \r18 \* MERGEFORMAT . Oregon House Bill 2414 of 2001 was signed by the Governor on May 21, 2001, after being unanimously approved by both houses of the Oregon Legislature. The Act is now consolidated as Or. Rev. Stat. 81.10081.135 (2005). The Act is reproduced in an Appendix to this Article.  ADVANCE \r18 \* MERGEFORMAT . According to its section 11, the Act applies to actions or proceedings commenced on or after its effective date, even with regard to contracts made before that date, unless that application would violate constitutional prohibitions against impairment of contracts.  ADVANCE \r18 \* MERGEFORMAT . The word is Greek and it means the exposition, objective explanation, or drawing out of the meaning of a given text.  ADVANCE \r18 \* MERGEFORMAT . The author was a member of the drafting group chaired by Dominick Vetri and consisting of J. Michael Alexander, Wallace Carson, Mildred Carmack, Jonathan Hoffman, Maurice Holland, Douglas Houser, Hans Linde, Eugene Scoles, and William Snouffer. The Reporter for this project was James A.R. Nafziger. For his analysis, see James A.R. Nafziger, Oregons Conflicts Law Applicable to Contracts, 38 Willamette L. Rev. 397 (2002).  ADVANCE \r18 \* MERGEFORMAT . See Academia Puertorriquea de Jurisprudencia y Legislacion, Proyecto para la Codificacin del Derecho Internacional Privado de Puerto Rico (Symeon C. Symeonides & Arthur T. von Mehren, Rapporteurs) (Puerto Rico 1991) [hereinafter Puerto Rico Draft Code] (on file with journal). For a subsequent version drafted by this author under the auspices of the Commisin Conjunta Permanente para la Revisin y Reforma del Cdigo Civil de Puerto Rico, see http://www.codigocivilpr.net/. For a discussion of the contract provisions of the draft code, see Symeon C. Symeonides, Codifying Choice of Law for Contracts: The Puerto Rico Project, in Law and Justice in a Multistate World: Essays in Honor of Arthur T. von Mehren 419 (J. Nafziger & S. Symeonides, eds. 2002) [hereinafter Symeonides, Puerto Rico Project]. See also Symeon C. Symeonides, Revising Puerto Ricos Conflicts Law: A Preview, 28 Colum. J. Transnatl L. 413 (1990). Political reasons have delayed the introduction of the draft to the Puerto Rico Legislature until 2007, when it was introduced as the seventh book of the revised Puerto Rico Civil Code.  ADVANCE \r18 \* MERGEFORMAT . In turn, the Puerto Rico Code relied on an earlier codification drafted by the same author for the state of Louisiana. See Symeonides, Louisiana Conflicts Law: Two Surprises, supra note 23.  ADVANCE \r18 \* MERGEFORMAT . This article draws from Symeon C. Symeonides, Codifying Choice of Law for Contracts: The Oregon Experience, 67 Rabels Zeitschrift fr Auslndisches und Internationales Privatrecht 726 (2003) (an article for foreign readers).  ADVANCE \r18 \* MERGEFORMAT . See Or. Rev. Stat. 81.100(1) (2005). This provision defines law as including international law but excluding the law of choice of law. This exclusion is designed to avoid the complexities and potential circularity of renvoi, namely the application of the choice-of-law rules of another state. For a discussion of renvoi, see Scoles, Hay, Borchers & Symeonides , supra note 16, at 138-142; Symeon C. Symeonides, Wendy C. Perdue & Arthur T. von Mehren, Conflict of Laws: American, Comparative, International 6669 (2d ed. 2003).  ADVANCE \r18 \* MERGEFORMAT . See Or. Rev. Stat. 81.100(2). This provision defines state so as to include not only states of the United States but also any country or a territorial division of a country that has its own system of law. This Article adopts the same usage for the word state.  ADVANCE \r18 \* MERGEFORMAT . Id. 81.102.  ADVANCE \r18 \* MERGEFORMAT . Id. The same section also provides that the Act does not apply to any contract in which one of the parties is a financial institution, as defined by 15 U.S.C. 6827. This sentence pertains to certain financing contracts that would have been exempted from the Act even in the absence of this sentence. However, a particular interest group insisted on the insertion of this sentence under the threat of defeating or delaying the enactment of the Act.  ADVANCE \r18 \* MERGEFORMAT . The U.C.C. contains several bilateral choice-of-law rules. See id.; Or. Rev. Stat. 71.1050, 72.4020, 72A.1040, 72A.1050, 74.1020, 74A.5070, 75.1160, 78.1100, 79.1030 (2005).  ADVANCE \r18 \* MERGEFORMAT . See id. 731.086, 742.001, 742.003, 742.018, 742.063, 742.246, 742.450, 742.502, 742.520, 743.015, 743.101106, 743.527; see also id. 465.475465.480 (environmental cleanup assistance), 468.080 (trans-boundary pollution).  ADVANCE \r18 \* MERGEFORMAT . See, e.g., id. 108.710 (premarital agreements), 194.555 (foreign notarial acts), 12.41012.480 (statutes of limitations), 36.508 (mediation and arbitration).  ADVANCE \r18 \* MERGEFORMAT . Needless to say, the same roadmap can be followed by an arbitrator and any other decision-maker, including a lawyer in planning for litigation. On the other hand, a lawyer drafting a contract will likely follow a different roadmap.  ADVANCE \r18 \* MERGEFORMAT . See infra text accompanying notes 4051.  ADVANCE \r18 \* MERGEFORMAT . A unilateral choice-of-rule is a rule that mandates the application of the law of the forum to cases that have certain contacts with the forum state without addressing the question of which governs analogous cases that lack those contacts. For the difference between unilateralism and multilateralism (or bilateralism), see Symeon C. Symeonides, Accommodative Unilateralism as a Starting Premise in Choice of Law, in Balancing of Interests: Liber Amicorum Peter Hay 417434 (2005).  ADVANCE \r18 \* MERGEFORMAT . See Or. Rev. Stat. 81.105(1) (also allowing the state agency to waive the application of Oregon law).  ADVANCE \r18 \* MERGEFORMAT . See id. 81.105(2). Unlike the other three subsections, this subsection does not require that any party to the contract be an Oregon resident.  ADVANCE \r18 \* MERGEFORMAT . See id. 81.105(3).  ADVANCE \r18 \* MERGEFORMAT . Id. 81.105(4)(b) (defining consumer contracts as those for the supply of goods or services that are designed primarily for personal, familial or household use.) This definition was taken from the Puerto Rico Draft Code and is similar to definitions contained in many European codifications. See, e.g., Convention on the Law Applicable to Contractual Obligations, 1980 O.J. (L 266) Art. 5(1) [hereinafter Rome Convention]; Convention on the Law Applicable to Contracts for the International Sale of Goods, Dec. 22, 1986, art. 2(c) [hereinafter Hague Sales Convention]; United Nations Convention on the International Sale of Goods, April 11, 1980, art. 2(a) [hereinafter CISG]; Art. 29(1) of the Introductory Law to the German Civil Code (Transl. by Wegen, 27 I.L.M. 1, 18 (1988)) [hereinafter EGBGB]; and Art. 120 of the Swiss codification, Dec. 18, 1987 (Transl. by Cornu, Hankins & Symeonides, 37 Am. J. Comp. L. 193 (1989)) [hereinafter Swiss Code]. The 2001 revisions of the U.C.C. define a consumer as an individual who enters into a transaction primarily for personal, family, or household purposes. U.C.C. 1-201(b)(11) (2001 Rev.).  ADVANCE \r18 \* MERGEFORMAT . See Or. Rev. Stat. 81.105(4)(a) (requiring that the consumers assent to the contract must have been obtained in Oregon, or that the consumer must have been induced to enter into the contract in substantial measure by an invitation or advertisement in Oregon.).  ADVANCE \r18 \* MERGEFORMAT . Id. 81.105.  ADVANCE \r18 \* MERGEFORMAT . This includes issues of form, capacity, and consent for which the Act provides special choice-of-law rules. See id. 81.110, 81.112, and 81.115 (containing cross-references to Section 81.105).  ADVANCE \r18 \* MERGEFORMAT . See also id. 81.120(1) (cross-referencing to Section 81.105 and thus expressly exempting these contracts from the scope of party autonomy).  As used hereafter, the term state interest is a term of art with a well-defined technical meaning in conflicts literature. A state is deemed to have an interest when the policies, objectives, or purposes embodied in its law would be adversely affected or impaired by the non-application of that law to the case at hand. Before asserting that a state has an interest in applying its law, one must: (1) identify, through the interpretative process, the objective or purpose of that law; and (2) demonstrate that the states contacts with the case are such as to bring it within the laws intended reach. Thus, an interest is not a surmised, unilateral, active desire of a state to apply its law to any and all cases, but rather the result of an objective evaluation of the consequences that would follow from not applying that law to a case that has pertinent contacts with the state. For fuller discussion of state interest, see Symeonides, The Choice-of-Law Revolution, supra note 2, at 1518, 370373.  ADVANCE \r18 \* MERGEFORMAT . U.C.C. 1-301(e)(2). If the contract is a sale of goods and the consumer made the contract and took delivery of the goods in a state other than his home state, the consumer is entitled to the protection of the law of that state. See id.  ADVANCE \r18 \* MERGEFORMAT . Articles 4143 of the Puerto Rico Draft Code allow consumers, employees, and insurers to opt out of the automatic application of forum law under those articles and to submit to the ordinary choice-of-law process, which may or may not lead to forum law. For a discussion of the specifics and the rationale of these provisions, see Symeonides, Puerto Rico Project, supra note 28, at 419, 43334.  ADVANCE \r18 \* MERGEFORMAT . See Or. Rev. Stat. 81.105(1).  ADVANCE \r18 \* MERGEFORMAT . For similar provisions, see La. Civ. Code, Art. 3538 (2007); Puerto Rico Draft Code, supra note 28, at art. 39. For extensive comparative discussion of the validation principle, see Symeon C. Symeonides, Private International Law at the End of the 20th Century: Progress or Regress? 5052 (1999) [hereinafter Progress or Regress?].  ADVANCE \r18 \* MERGEFORMAT . For similar provisions, see Puerto Rico Draft Code, supra note 28, at art. 38(a); Rome Convention, supra note 44, at art. 9(1); Hague Sales Convention, supra note 44, art. 11(1); EGBGB, supra note 44, at art. 11(1); Swiss code, supra note 44, at art. 124(1); and Restatement (Second) of Conflict of Laws 199(1) (1971).  ADVANCE \r18 \* MERGEFORMAT . When the parties have agreed to submit their contract to the laws of more than one state, the question of which one of these laws should be deemed the chosen law for purposes of form is a matter of contract interpretation. When the parties have chosen a law for only part of their contract, then the question is one of both contract interpretation and judicial discretion under the principles of section 81.130.  ADVANCE \r18 \* MERGEFORMAT . Or. Rev. Stat. 81.110. The reference to section 81.105 presupposes that the contract is one of those listed in that provision and has the Oregon contacts specified therein. Likewise, the reference to section 81.135 contemplates contracts for which that section provides a presumptive rule.  ADVANCE \r18 \* MERGEFORMAT . As the drafters of the Rome Convention suggest, when a contract is subject to several laws, it would be reasonable to apply the law applicable to the part of the contract most closely connected with the disputed condition on which its formal validity depends. Mario Giuliano & Paul Lagarde, Report on the Convention on the Law Applicable to Contractual Obligations, in Peter North, Contract Conflicts 355, 384 (1982).  ADVANCE \r18 \* MERGEFORMAT . The same approach applies to the contracts referred to in section 81.135. The cross-reference to section 81.110 means that, if the contract is one of those enumerated in section 81.135 and satisfies the form requirements of the law applicable under that section, the contract should be sustained as to form, unless the party arguing for invalidity demonstrates that, with regard to the issue of form, the application of that law would be clearly inappropriate under the principles of section 81.130.  ADVANCE \r18 \* MERGEFORMAT . Or. Rev. Stat. 81.110.  ADVANCE \r18 \* MERGEFORMAT . See, e.g., Rome Convention, supra note 44, at art. 9(1)-(3); Hague Sales Convention, supra note 44, at art. 11(1)-(3); EGBGB, supra note 44, at art. 11(1)-(3); Swiss code, supra note 44, at art. 124(1)-(2).  ADVANCE \r18 \* MERGEFORMAT . Or. Rev. Stat. 81.110.  ADVANCE \r18 \* MERGEFORMAT . The sources of this provision are 3539 of the Louisiana codification and article 39 of the Puerto Rico Draft Code.  ADVANCE \r18 \* MERGEFORMAT . Or. Rev. Stat. 81.112. The cross-reference to sections 81.105 and 81.135 is confined to those contracts that fall within the scope of those sections (i.e., contracts governed by Oregon law, and contracts subject to presumptive rules), while the cross-reference to section 81.130 encompasses all other contracts.  ADVANCE \r18 \* MERGEFORMAT . In these cases, if the laws of both states consider the party capable, then the contract should be upheld as to capacity. If the laws of both states consider that party incapable, then the contract is invalid and the second sentence of subsection (2) of section 81.112 becomes operable. It provides that in such a case, the consequences of incapacity, such as the availability and consequences of annulment, are governed by the law of that partys domicile.  ADVANCE \r18 \* MERGEFORMAT . For similar rules, see Rome Convention, supra note 44, at art. 11, which provides that [i]n a contract concluded between persons who are in the same country, a natural person who would have capacity under the law of that country may invoke his incapacity resulting from another law only if the other party to the contract was aware of this incapacity at the time of the conclusion of the contract or was not aware thereof as a result of negligence. Benelux Treaty on Private International Law, art. 2 (1969), which provides that a person declared incapable by his law may not invoke his incapacity against one who . . . has in good faith and in conformity with the law of the place of the act considered him to be capable.  ADVANCE \r18 \* MERGEFORMAT . 395 P.2d 543 (Or. 1964).  ADVANCE \r18 \* MERGEFORMAT . The very fact that section 81.112 calls for the application of whichever of the two law would validate the contract implies a rejection of the automatic application of the law of the domicile of the incapable party, even when that domicile is in the forum state, and negates any inference that one should approach this case with any presumption in favor of Oregon law. Rather, one should approach this question with an open mind guided by the flexible and non-parochial approach prescribed in section 81.130.  ADVANCE \r18 \* MERGEFORMAT . See infra text accompanying notes 140 et seq. See also Symeon C. Symeonides, Resolving Six Celebrated Conflicts Cases Through Statutory Choice-of-Law Rules, 48 Mercer L. Rev. 83769 (1997) (discussing how Lilienthal would be decided under the similarly structured articles of the Louisiana codification).  ADVANCE \r18 \* MERGEFORMAT . Most conflicts codifications would reach the same result. See Symeonides, Progress or Regress ?, supra note 53, at 5152.  ADVANCE \r18 \* MERGEFORMAT . For comparable provisions, see Puerto Rico Draft Code, supra note 28, at art. 40; Rome Convention, supra note 44, at art. 8; EGBGB, supra note 44, at art. 31; Hague Sales Convention, supra note 44, at art. 10; Swiss code, supra note 44, at art. 123; and Restatement (Second) of Conflict of Laws, supra note 54, at 200-201.  ADVANCE \r18 \* MERGEFORMAT . Symeonides. Perdue & von Mehren, supra note 31, at 338.  ADVANCE \r18 \* MERGEFORMAT . Russell J. Weintraub, Functional Developments in Choice of Law for Contracts, in Recueil des Cours 239, 271 (1984-VI).  ADVANCE \r18 \* MERGEFORMAT . Wayman v. Southard, 23 U.S. 1, 48 (1825); see also Pritchard v. Norton, 106 U.S. 124 (1882).  ADVANCE \r18 \* MERGEFORMAT . See Scoles, Hay, Borchers & Symeonides, supra note 16, at 952 n.1.  ADVANCE \r18 \* MERGEFORMAT . See 2 J. Beale, Treatise on the Conflicts of Laws 332.2 (1935) (attacking party autonomy because at their will . . .[parties] can free themselves from the power of the law which would otherwise apply to their acts).  ADVANCE \r18 \* MERGEFORMAT . See Restatement (Second) of Conflict of Laws, supra note 54, at 187; discussion infra at note 94.  ADVANCE \r18 \* MERGEFORMAT . See Symeonides, Perdue & von Mehren, supra note 31, at 339 (About twenty percent of conflicts cases decided by intermediate courts and courts of last resort every year involve a choiceoflaw clause. . . . Although this is a high percentage, it is probably even higher if one considers lower court cases that are not appealed or contracts that do not result in litigation.).  ADVANCE \r18 \* MERGEFORMAT . For in depth discussion, see Scoles, Hay, Borchers & Symeonides, supra note 16, at 947-987.  ADVANCE \r18 \* MERGEFORMAT . For a similar scheme, see La. Civ. Code Ann. art. 3540 (2007), and Puerto Rico Draft Code, supra note 28, at art. 34.  ADVANCE \r18 \* MERGEFORMAT . See, e.g,.EGBGB, supra note 44, at Art. 42 (After the event giving rise to a non-contractual obligation has occurred, the parties may choose the law that shall apply to the obligation.) (emphasis added); Belgian Code of Private International Law, Art. 101 (accord). Article 14 of the newly proposed European Unions Regulation known as Rome II allows pre-tort choice-of-law clauses only if all the parties are pursuing a commercial activity and the clause is freely negotiated. See Regulation on the Law Applicable to Non-Contractual Obligation, July 11, 2007, O.J. (L 199) p. 40 (2007). Under European Union Law, a Regulation is binding and directly applicable in all Member States of the Union and preempts any contrary national law.  ADVANCE \r18 \* MERGEFORMAT . The pertinent section of the Restatement (Second), section 187, speaks of the law chosen by the parties to govern their contractual rights. The same is true of the Louisiana codification. See La. Civ. Code Ann. art. 3540.  ADVANCE \r18 \* MERGEFORMAT . For cases holding that the clause did not encompass contract-related tort claims between the same parties, see, e.g., Benchmark Electrics, Inc. v. J.M. Huber Corp., 343 F.3d 719 (5th Cir. 2003); Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292 (11th Cir. 2003); Krock v. Lipsay, 97 F.3d 640 (2d Cir. 1996); Valley Juice Ltd., Inc. v. Evian Waters of France, Inc., 87 F.3d 604 (2d Cir. 1996); Caton v. Leach Corp., 896 F.2d 939, 942-43 (5th Cir. 1990); Financial Trust Co. Inc. v. Citibank, North America, 268 F.Supp.2d 561 (D. V.I. 2003); Gloucester Holding Corp. v. U.S. Tape and Sticky Products, LLC, 832 A.2d 116 (Del. Chan. 2003); Owen J. Roberts School Dist. v. HTE, Inc., 2003 WL 735098 (E.D.Pa. 2003); Lewis Tree Service, Inc. v. Lucent Technologies Inc., 239 F.Supp.2d 322 (S.D.N.Y. 2002); Medline Industries Inc. v. Maersk Medical Ltd., 230 F.Supp.2d 857 (N.D.Ill. 2002); MBI Acquisition Partners, L.P. v. Chronicle Publishing Co., 2001 WL 148812 (W.D. Wis. 2001); Twinlab Corp. v. Paulson, 724 N.Y.S.2d 496 (N.Y.A.D. 2001); Florida Evergreen Foliage v. E.I. DuPont De Nemours & Co., 135 F.Supp.2d 1271 (S.D.Fla. 2001); Precision Screen Machines, Inc. v. Elexon, Inc., 1996 WL 495564 (N.D.Ill. 1996); Union Oil Co. v. John Brown E. & C., No. 94 C 4424, 1994 WL 535108 (N.D.Ill.,1994); Shelley v. Trafalgar House Public Ltd. Co., 918 F.Supp. 515 (D.P.R.1996); Telemedia Partners Worldwide, Ltd. v. Hamelin Ltd., 1996 WL 41818 (S.D.N.Y.1996); Champlain Enterprises, Inc. v. United States, 945 F.Supp. 468 (N.D.N.Y.1996); Young v. W.S. Badcock Corp., 474 S.E.2d 87 (Ga.App.1996); Young v. Mobil Oil Corp., 735 P.2d 654 (Or.Ct.App.1987); Ezell v. Hayes Oilfield Const. Co., Inc., 693 F.2d 489 (5th Cir.1982), cert. denied, 464 U.S. 818 (1983). For cases reaching the opposite conclusion, see Nedlloyd Lines B.V. v. Superior Court, 834 P.2d 1148 (1992); Forrest v. Verizon Communications, Inc., 2002 WL 1988367 (D.C. 2002); Turtur v. Rothschild Registry International Inc., 26 F.3d 304 (2d Cir. 1994); Roby v. Corporation of Lloyds, 996 F.2d 1353 (2d Cir. 1993); Wireless Distributors, Inc. v. Sprintcom, Inc., 2003 WL 22175607 (N.D.Ill. 2003); Birnberg v. Milk Street Residential Associated Ltd. Partnership, 2003 WL 151929 (N.D.Ill. 2003); Twohy v. First National Bank of Chicago, 758 F.2d 1185 (7th Cir. 1985); About. Com, Inc. v. Targetfirst, Inc., 2002 WL 826953 (S.D.N.Y. 2002).  ADVANCE \r18 \* MERGEFORMAT . See Scoles, Hay, Borchers & Symeonides, supra note 16, at 80912, 94950; Symeonides, Perdue & Von Mehren, supra note 31, at 360, 390; Symeon C. Symeonides, Choice of Law in the American Courts in 2002: Sixteenth Annual Survey, 51 Am. J. Comp. L. 1, 67-68 (2003).  ADVANCE \r18 \* MERGEFORMAT . 181 F.Supp.2d 504 (D.Md. 2002).  ADVANCE \r18 \* MERGEFORMAT . See Symeonides, Perdue & von Mehren, supra note 31, at 35859 (suggesting a distinction between intended scope and permissible scope of the choice-of-law clause).  ADVANCE \r18 \* MERGEFORMAT . Sutton, 181 F.Supp.2d at 508 (emphasis added) (any dispute arising out of or relating in anyway to [plaintiffs] relationship with [defendant] shall be subject to final, non-appealable, binding arbitration . . . Exclusive venue for any dispute resolution shall be in Portland, Oregon and Oregon law shall control for all purposes.).  ADVANCE \r18 \* MERGEFORMAT . Id. at 511.  ADVANCE \r18 \* MERGEFORMAT . Id. at 512.  ADVANCE \r18 \* MERGEFORMAT . Or. Rev. Stat. 81.120(2) (2005).  ADVANCE \r18 \* MERGEFORMAT . However, the second sentence of section 81.120(2) contemplates written clauses when it provides that in a standard-form contract drafted primarily by only one of the parties, the choice of law must be express and conspicuous. Id.  ADVANCE \r18 \* MERGEFORMAT . See Nakhleh v. Chemical Construction Corp., 359 F.Supp. 357 (S.D.N.Y. 1973). Many other codifications expressly sanction oral choice-of-law agreements. For citations, see Scoles, Hay, Borchers & Symeonides, supra note 16, at 948.  ADVANCE \r18 \* MERGEFORMAT . Cf. Restatement (Second) of Conflict of Laws, supra note 54, at 187, cmt. a (It does not suffice to demonstrate that the parties, if they had thought about the matter, would have wished to have the law of a particular state applied.).  ADVANCE \r18 \* MERGEFORMAT . The draft, which was based on Article 34 of the Puerto Rico Draft Code, also contained the phrase or from the conduct of the parties. See Symeonides, Puerto Rico Project, supra note 28, at 419, 421.  ADVANCE \r18 \* MERGEFORMAT . As opposed, for instance, to the verb result, which is used in Article 116 of the Swiss code.  ADVANCE \r18 \* MERGEFORMAT . This phrase was borrowed from the Uniform Commercial Code (see Or. Rev. Stat. 71.2010) and is intended to have the same meaning as in the source provision.  ADVANCE \r18 \* MERGEFORMAT . Or. Rev. Stat. 81.120(3).  ADVANCE \r18 \* MERGEFORMAT . For similar provisions see Rome Convention, supra note 44, at art. 3(1); EGBGB, supra note 44, at art. 27(1); Hague Sales Convention, supra note 44, at art. 7(1); Puerto Rico Draft Code, supra note 28, at art. 34; and La. Civ. Code Ann. art. 3540 cmt. e (2007).  ADVANCE \r18 \* MERGEFORMAT . See, e.g,. Restatement (First) of Conflict of Laws 325, 326, 358 (1933).  ADVANCE \r18 \* MERGEFORMAT . See also Puerto Rico Draft Code, supra note 28, at art. 34; La. Civ. Code Ann. art. 3540 cmt. e.  ADVANCE \r18 \* MERGEFORMAT . Compare with Rome Convention, supra note 44, art. 2(3), EGBGB, supra note 44, art. 27(2), Hague Sales Convention, supra note 44, art. 7(2), Swiss code, supra note 44, at art. 116(3), and Puerto Rico Draft Code, supra note 28, at art. 34.  ADVANCE \r18 \* MERGEFORMAT . See, e.g., Restatement (Second) of Conflict of Laws, supra note 54, at 187.  ADVANCE \r18 \* MERGEFORMAT . Or. Rev. Stat. 81.120(1) (2005).  ADVANCE \r18 \* MERGEFORMAT . Or. Rev. Stat. 81.120 cmt. 3, reprinted in 38 Willamette L. Rev. 397, 421 (2002). The Reporters comments suggest the same possibility with regard to the courts choice-of-law decision under the general rule of section 81.130 for contracts that do not contain an effective choice-of-law clause. See Or. Rev. Stat. 81.130 cmt. 2(c) (2005). However, the repeated reference to states in that section casts doubt on whether the court can apply non-state norms under that section.  ADVANCE \r18 \* MERGEFORMAT . For an extensive discussion of non-state norms and the extent to which they may govern multistate contracts, see Symeon C. Symeonides, Contracts Subject to Non-State Norms: United States National Report to the 17th Congress of Comparative Law, 54 Am. J. Comp. L. 209 (2006 Supp.); Symeon C. Symeonides, Party Autonomy and Private Law-Making in Private International Law: The Lex Mercatoria that Isnt, in Festschrift fr K.D. Kerameus (forthcoming 2008).  ADVANCE \r18 \* MERGEFORMAT . These limitations are discussed infra pp. 127-31.  ADVANCE \r18 \* MERGEFORMAT . Compare with Restatement (Second) of Conflict of Laws, supra note 54, at 187(3), and La. Civ. Code Ann. art. 3540 cmt. (e) (2007).  ADVANCE \r18 \* MERGEFORMAT . Renvoi is the application of the choice-of-law rules of a state other than the forum. For discussion of the various possibilities and problems, see Scoles, Hay, Borchers & Symeonides, supra note 16, at 13842; Symeonides, Perdue & von Mehren, supra note 31, at 6669.  ADVANCE \r18 \* MERGEFORMAT . See Scoles, Hay, Borchers & Symeonides, supra note 16, at 12937; Symeonides, Perdue & von Mehren, supra note 31, at 38487.  ADVANCE \r18 \* MERGEFORMAT . See Federal Deposit Ins. Corp. v. Petersen, 770 F.2d 141, 142-43 (10th Cir. 1985); Florida State Bd. of Admin., v. Engg & Envtl. Servs., Inc., 262 F.Supp.2d 1004 (D.Minn. 2003); W. Group Nurseries, Inc. v. Ergas, 211 F.Supp.2d 1362 (S.D.Fla. 2002); Shaw v. Rivers White Water Rafting Resort, 2002 WL 31748919 (E.D.Mich. 2002); Springfield Oil Servs., Inc. v. Costello, 941 F.Supp. 45 (E.D.Pa. 1996); Manion v. Roadway Package System, Inc., 938 F.Supp. 512 (C.D .Ill. 1996); In re W. United Nurseries, Inc. v. Estate of Adams, 191 B.R. 820 (Bankr. D. Ariz. 1996); In re Fineberg, 202 B.R. 206 (Bankr. E.D. Pa. 1996); Long v. Holland Am. Line Westours, Inc., 26 P.3d 430 (Alaska 2001); Educ. Research Inst. v. Lipsky, 2002 WL 1463461 (Cal. Ct. App. 2002); Hambrecht & Quist Venture Partners v. Am. Med. Intl, Inc., 46 Cal.Rptr.2d 33 (Cal. Ct. App. 1995); Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc. 770 N.E.2d 177 (Ill. 2002); Hemar Ins. Corp. v. Ryerson, 108 S.W.3d 90 (Mo.App. 2003); Nez v. Forney, 783 P.2d 471 (N.M. 1989); Fin. Bancorp. Inc. v. Pingree & Dahle, Inc., 880 P.2d 14 (Ut. Ct. App. 1994). For other procedural issues, see, e.g., Maddox v. American Airlines, Inc., 298 F.3d 694 (8th Cir. 2002) (prejudgment interest); Weatherby Assoc., Inc. v. Ballack, 783 So.2d 1138 (Fla. Dist. Ct. App. 2001); North Bergen Rex Transport v. Trailer Leasing Co., 730 A.2d 843 (N.J. 1999) (attorney fees).  ADVANCE \r18 \* MERGEFORMAT . For the difficulties in drawing this distinction in conflicts law, see Symeonides, Perdue & von Mehren, supra note 31, at 5666.  ADVANCE \r18 \* MERGEFORMAT . Walter Wheeler Cook, The Logical and Legal Bases of the Conflict of Laws 166 (1942).  ADVANCE \r18 \* MERGEFORMAT . Section 187 of the Restatement (Second) provides that the parties choice of law will be honored if the state of the chosen law has a substantial relationship to the parties or the transaction, or there is an other reasonable basis for the parties choice. Restatement (Second) of Conflict of Laws, supra note 54, at 187(2).  ADVANCE \r18 \* MERGEFORMAT . See La. Civ. Code Ann. art. 3540 (2007), and Puerto Rico Draft Code, supra note 28, at art. 34; see also the conventions and codifications cited infra notes 119, 120.  ADVANCE \r18 \* MERGEFORMAT . See supra note 33 and accompanying text.  ADVANCE \r18 \* MERGEFORMAT . Cases refusing to enforce a choice-of-law clause on the sole ground that the chosen state lacked a substantial relationship are rare, but they do exist. See Curtis 1000, Inc. v. Youngblade, 878 F. Supp. 1224 (N.D. Iowa 1995) (anti-competition clause in an Iowa employment contract that contained a choice of Delaware lawchosen law not applied because Delaware had no substantial relationship to contract and because the chosen law would be repugnant to a fundamental policy of Iowa); CCR Data Sys., Inc. v. Panasonic Commcn & Sys. Co., 1995 WL 54380 (D. N.H. 1995) (choice-of-law clause not upheld because chosen state had no relationship with the contract or the parties); Robinson v. Robinson, 778 So.2d 1105 (La. 2001) (one spouses brief residence in a state insufficient connection for a choice-of-law clause pointing to that state in a contract regarding the division of marital property, even though the Louisiana codification does not require the presence of such a connection); Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954 (Miss. 1999) (refusing to enforce a Texas choice-of-law clause in a contract providing for the dismantlement of an Exxon ammonia plant located in Mississippi and for its shipment and reassembly in Pakistan); Cable Tel Serv., Inc. v. Overland Contracting, Inc., 2002 WL 31817600 (N.C.App. 2002).  ADVANCE \r18 \* MERGEFORMAT . For example, neither the Rome Convention nor the Inter-American Convention require internationality. See Rome Convention, supra note 44, at art. 3; Inter-American Convention, art. 7. For the rare case that foreign law is chosen for a local transaction, the Rome Convention, supra note 44, at art. 3(3), provides that the stipulation is limited by the mandatory rule of the place of the transaction (whether or not it is the forum).  ADVANCE \r18 \* MERGEFORMAT . U.C.C. 1-301(c) (2001 Rev.). U.C.C. 1-301(c)(1),(2) differentiate between domestic (i.e., inter-U.S. transactions) and international transactions, respectively. Neither provision requires that a relation between the transaction and the state whose law is stipulated in the clause, but U.C.C. 1-301(c)(1) requires that the chosen state be a state of the United States. For consumer contracts, U.C.C. 1-301(e) requires that the chosen state bear a reasonable relation to the transaction.  ADVANCE \r18 \* MERGEFORMAT . For the various options, see Symeon C. Symeonides, Wendy C. Perdue & Arthur T. von Mehren, Conflict of Laws: American, Comparative, International 324-28 (1st ed. 1998).  ADVANCE \r18 \* MERGEFORMAT . The fact that section 81.125 does not contain a cross-reference to section 81.135 is an oversight.  ADVANCE \r18 \* MERGEFORMAT . With regard to issues or performance, section 81.125 itself defines the lex causae as the law of the state where the act is to be performed under the contract. Or. Rev. Stat. 81.125(1)(a), (b) (2005).  ADVANCE \r18 \* MERGEFORMAT . See Scoles, Hay, Borchers & Symeonides, supra note 16, at 979980; Symeon C. Symeonides, The Judicial Acceptance of the Second Conflicts Restatement: A Mixed Blessing, 56 Maryland L. Rev. 1246, 1260 (1997).  ADVANCE \r18 \* MERGEFORMAT . Restatement (Second) of Conflict of Laws, supra note 54, at 187(2).  ADVANCE \r18 \* MERGEFORMAT . If any difference between the lex causae and the chosen law would be allowed to defeat the parties choice, then party autonomy would become a specious gift. As one court said, [t]he result would be that parties would have the right to choose the application of another states law only when that states law is identical to [the lex causae]. Such an approach would be ridiculous. Cherokee Pump & Equip., Inc. v. Aurora Pump, 38 F.3d 246, 252 (5th Cir. 1994); see also Bethlehem Steel Corp. v. G.C. Zarnas & Co., 498 A.2d 605 (Md. 1985). Thus, there is a general consensus on the need for a higher public policy threshold for multistate contracts than for fully domestic contracts. Predictably however, the various systems differ in defining this threshold.  ADVANCE \r18 \* MERGEFORMAT . The Restatement (Second) does not attempt to define the meaning of the term fundamental but it provides a few examples of rules that embody a fundamental policy, such as statutes declaring certain contracts illegal or designed to protect one party from the oppressive use of superior bargaining power such as statutes protecting insureds against insurers. Restatement (Second) of Conflict of Laws, supra note 54, at 187(2) cmt. g. The Restatement also provides examples of rules that do not embody a fundamental policy, such as statutes of frauds, rules tending to become obsolete, and general rules of contract law, such as those concerned with the need for consideration. Id. The Restatement also states that, to be fundamental in the sense of section 187(2)(b), a policy need not be as strong as the policy that justifies a refusal to apply foreign law under the traditional ordre public exception. Id.  ADVANCE \r18 \* MERGEFORMAT . For a recent Oregon case expressing serious misgivings about ones ability to define a fundamental policy, see MachadoMiller v. Mersereau & Shannon, LLP, 43 P.3d 1207, 1211 (Or. App. 2002) (To announce that a policy or a right is fundamental is to announce a conclusion and not a premise, and the reasoning that leads to the conclusion is almost always obscure, hopelessly subjective, or expressed in verbal formulations that are of little help . . . Further, whether a particular interest is deemed fundamental under such indeterminate formulations depends on the level of generality at which the Court chooses to identify it. To the extent the interest is described at a high level of generality, it is likely to be fundamental, and vice versa. Further, every piece of legislation, even the most apparently trivial, implements and therefore indicates the presence of some larger policy, which, in turn, serves an even larger one. A speed limit is not itself a fundamental policy statement, but its purpose is to promote highway safety, which is one way to protect the health, welfare and safety of citizens, which is, of course, one of the most fundamental of all public policies.).  ADVANCE \r18 \* MERGEFORMAT . Formerly of the Oregon Supreme Court and currently a Distinguished Jurist in Residence at ʮ².  ADVANCE \r18 \* MERGEFORMAT . Hans Linde drafted this definition.  ADVANCE \r18 \* MERGEFORMAT . See J. H. C. Morris, The Proper Law of Tort, 64 Harv. L. Rev. 881 (1951).  ADVANCE \r18 \* MERGEFORMAT . See James A.R. Nafziger, Oregons Conflicts Law Applicable to Contracts, 38 Willamette L. Rev. 397, 40104 (2002) (describing section 81.130 as designed to attain several stipulated objectives of material justice and describing the Oregon Act as a comprehensive framework of rules for determining the appropriate law, as a matter of material justice); see also id. (The Act offers a guiding hand toward stability of expectations and material justice.).  ADVANCE \r18 \* MERGEFORMAT . See Symeon C. Symeonides, Louisianas New Law of Choice of Law for Tort Conflicts: An Exegesis, 66 Tul. L. Rev. 677, 68992 (1992) (explaining the symbolism of the catch-phrases used in the Louisiana and Puerto Rico codifications, as well as in European codifications).  ADVANCE \r18 \* MERGEFORMAT . For a description and discussion of these methodologies, see Symeonides, The Choice-of-Law Revolution, supra note 2, at 1335.  ADVANCE \r18 \* MERGEFORMAT . But see Nafziger, supra note 129.  ADVANCE \r18 \* MERGEFORMAT . Gerhard Kegel, Paternal Home and Dream Home: Traditional Conflict of Laws and the American Reformers, 27 Am. J. Comp. L. 615, 61617 (1979).  ADVANCE \r18 \* MERGEFORMAT . Id.  ADVANCE \r18 \* MERGEFORMAT . The tension between these two conceptions of conflicts law is discussed in Symeonides, The Choice-of-Law Revolution, supra note 2, at 404411, and Symeon C. Symeonides, Material Justice and Conflicts Justice in Choice of Law, in International Conflict of Laws for the Third Millennium: Essays in Honor of Friedrich K. Juenger 125 (P. Borchers & J. Zekoll eds. 2000).  ADVANCE \r18 \* MERGEFORMAT . This part of section 81.130 is not a model of clarity. However, one recognizes in it the remnants of the corresponding Louisiana and Puerto Rico rules. For example, Art. 2 of the Puerto Rico Draft Code, provides for evaluating the strength and pertinence of these policies in the light of: . . . the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of the parties and minimizing the adverse consequences that might follow from subjecting the parties to the law of more than one state; while Article 36 lists the policies of facilitating the orderly planning of transactions, promoting multistate commercial intercourse, and protecting one party from undue imposition by the other. Puerto Rico Draft Code, supra note 28, at art. 2, 36.  ADVANCE \r18 \* MERGEFORMAT . For an extensive discussion of these limits, see Symeon C. Symeonides, American Private International Law (forthcoming 2008).  ADVANCE \r18 \* MERGEFORMAT . This is a remnant from the least impairment principle of the Louisiana codification. See La. Civ. Code Ann. arts. 3515, 3537, 3542 (1994).  ADVANCE \r18 \* MERGEFORMAT . See Russel J. Weintraub, Commentary on the Conflict of Laws 355 (4th ed. 2001) (describing his approach and the approach of the Louisiana codification as consequence-based approaches). For a discussion of this feature of the approach of the Louisiana codification, see Symeonides, Louisiana Conflicts Law: Two Surprises, supra note 23, at 52324.  ADVANCE \r18 \* MERGEFORMAT . 395 P.2d 543 (Or. 1964).  ADVANCE \r18 \* MERGEFORMAT . Or. Rev. Stat. 81.130(1) (2005).  ADVANCE \r18 \* MERGEFORMAT . Id.  ADVANCE \r18 \* MERGEFORMAT . See Symeonides, The Choice-of-Law Revolution, supra note 2, at 33, 102103.  ADVANCE \r18 \* MERGEFORMAT . See id.  ADVANCE \r18 \* MERGEFORMAT . One result of this analysis is the possibility that the laws of different states may be found applicable to different issues in the same dispute. This phenomenon, known in American conflicts literature by its French name of dpeage, is not as anomalous as it might seem to the uninitiated and is a common occurrence in American conflicts practice. See Symeonides, The Choice-of-Law Revolution, supra note 2, at 103. However, the uncritical use of dpeage may occasionally result in an unprincipled eclecticism that distorts the policies of the involved states. Fortunately, the flexible language of section 81.130 enables alert judges to avoid unprincipled eclecticism. For a test for distinguishing a permissible from an inappropriate dpeage, see Symeonides, Perdue & von Mehren, supra note 31, at 26061.  ADVANCE \r18 \* MERGEFORMAT . Or. Rev. Stat. 81.130(2).  ADVANCE \r18 \* MERGEFORMAT . Id. 81.130(3).  ADVANCE \r18 \* MERGEFORMAT . See Olshen v. Kaufman, 385 P.2d 161 (Or. 1963). Olshen involved identical facts and the same spendthrift as Lilienthal, except that the creditor was an Oregonian and the contract was made in Oregon. The court held the contract invalid under Oregons spendthrift rule.  ADVANCE \r18 \* MERGEFORMAT . Or. Rev. Stat. 81.130(3)(a).  ADVANCE \r18 \* MERGEFORMAT . 385 P.2d 161.  ADVANCE \r18 \* MERGEFORMAT . Or. Rev. Stat. 81.130(3)(b).  ADVANCE \r18 \* MERGEFORMAT . Id.  ADVANCE \r18 \* MERGEFORMAT . Id.  ADVANCE \r18 \* MERGEFORMAT . Id.  ADVANCE \r18 \* MERGEFORMAT . Lilienthal v. Kaufman, 395 P.2d 543, 547 (Or. 1964) (internal quotations omitted).  ADVANCE \r18 \* MERGEFORMAT . See Symeonides, The Choice-of-Law Revolution, supra note 2, at 2122, 369370, 391.  ADVANCE \r18 \* MERGEFORMAT . See, e.g., Sims Snowboards, Inc. v. Kelly, 863 F.2d 643 (9th Cir. 1988); Manz v. Contl Am. Life. Ins. Co., 843 P.2d 480 (Or. 1992), modified, 849 P.2d 549 (1993); Citizens First Bank v. Intercontinental Express, Inc., 713 P.2d 1097 (Or. 1986); Kubeck v. Consol. Underwriters, 517 P.2d 1039 (Or. 1974); Casey v. Manson Constr. & Engg Co., 428 P.2d 898 (Or. 1967).  ADVANCE \r18 \* MERGEFORMAT . See Puerto Rico Draft Code, supra note 28, at art. 37; Rome Convention, supra note 44, at art. 4(2)-(5); EGBGB, supra note 44, at art. 28(2)(5); and Swiss code, supra note 44, at art. 117(2)-(3). For a comprehensive historical and comparative discussion of presumptive rules in contract conflicts, see Ole Lando, The Conflict of Laws of Contracts: General Principles, 189 Hague Academy Recueil des Cours 225, 33846 (1984-VI).  ADVANCE \r18 \* MERGEFORMAT . Or. Rev. Stat. 81.135.  ADVANCE \r18 \* MERGEFORMAT . See Symposium: Preparing for the Next Century A New Restatement of Conflicts, 75 Ind. L. J. 399 (2000) (containing an introduction by Gene R. Shreve, articles by Friedrich K. Juenger, William M. Richman & William L. Reynolds, Symeon C. Symeonides, and Louise Weinberg, and commentaries by Patrick J. Borchers, Perry Dane, Michael H. Gottesman, Alfred Hill, Harold G. Maier, Courtland H. Peterson, Bruce Posnak, Mathias Reimann, William A. Reppy, Jr., Robert A. Sedler, Linda J. Silberman & Andreas F. Lowenfeld, Gary J. Simson, Joseph William Singer, Aaron D. Twerski, and Russell J. Weintraub). This debate was initiated by the author in the previous annual meeting, which celebrated the silver anniversary of the Second Restatement. See Symeon C. Symeonides, The Judicial Acceptance of the Second Conflicts Restatement: A Mixed Blessing, 56 Md. L. Rev. 1246, 1248 (1997).  ADVANCE \r18 \* MERGEFORMAT . See Symposium: American Conflicts Law at the Dawn of the 21st Century, 37 Willamette L. Rev. 1 (2000) (containing articles by Symeon Symeonides, Friedrich K. Juenger, Herma Hill Kay, Arthur T. von Mehren, Judge Jack B. Weinstein, Russell Weintraub, and commentaries by Stanley E. Cox, James A.R. Nafziger, Robert A. Sedler, Gene R. Shreve, and Ralph U. Whitten); see also Jan Kropholler & Jan von Hein, From Approach to Rule-Orientation in American Tort Conflicts, in Law and Justice in A Multistate World: Essays in Honor of Arthur T. von Mehren 317 (J. Nafziger & S. Symeonides, eds. 2002).  ADVANCE \r18 \* MERGEFORMAT . Currie, supra note 5, at 183, 616.  ADVANCE \r18 \* MERGEFORMAT . See Courtland H. Peterson, New Openness to Statutory Choice of Law Solutions, 38 Am. J. Comp. L. 423, 423 (1990) (We may be seeing a sea change in the attitudes of American conflicts scholars with respect to the use of statutes in solving conflicts problems.).  ADVANCE \r18 \* MERGEFORMAT . See Scoles, Hay, Borchers & Symeonides, supra note 16, at 105110.  ADVANCE \r18 \* MERGEFORMAT . See Symeonides, The Choice-of-Law Revolution, supra note 2, at 411418, 422437  ADVANCE \r18 \* MERGEFORMAT . See id. at 42537.    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