美国纽约州律师资格考试各科提纲 - 国际私法

1、 融经国际商法咨询服务 Gnosis&Praxis Intl Commercial & Regulatory Consulting o Parties can always choose the law in the contract for matters of contract construction o Parties can choose the law to govern matters of contract validity provided: § Choice is not contrary to a fundamental interest of

2、the state with a greater interest than the chosen state § A substantial relationship to the parties/transaction exists § Choice is free from duress (not a contract of adhesion o NY Special Rules on Large Contracts § Contract for $250,000 or more · Parties can chose NY law, even i

3、f contract has no connection with NY § Contract for $1,000,000 or more & parties choose NY law in contract · Parties may put in clause specifying that NY may be forum and courts are prohibited from dismissing under forum non conveniens o NY has abandoned the Vested Rights Rule in Contr

4、acts in favor of Babcock test o “Significant Relationship to the contract” term of art applied to state chosen after interest analysis is applied o Special Rule for Insurance Contracts: § All issues regarding the rights and duties under an insurance policy are determined by the state where the

5、policy is written REAL PROPERTY o Law of situs of the property governs (place where property is located PERSONAL PROPERTY o Law of situs of the property governs (place where property is located § EXCEPTION: · Property passing by intestacy, then state of deceaseds domicile at death applies.

6、 INHERITANCE o Non-NY domiciliary can choose NY law in a will to apply to the disposition of NY assets (applies even if it would oust wife from elective share FAMILY LAW o Marriage is valid where marriage celebrated/performed § EXCEPTION: · Marriage would violate the strong public policy o

7、f the state, then it may not be recognized even though it was valid where performed o Marriages void where performed are void everywhere § EXCEPTION: · If marriage void because failed to comply with technical requirement of the state where performed, it can still be recognized in NY if it

8、would have complied with the NY rule o Divorce: governed by law of Ps domicile Ø Ø Ø Ø Defenses to Choice of Law 6 融经国际商法咨询服务 Gnosis&Praxis Intl Commercial & Regulatory Consulting Ø Law chosen is procedural, not substantive o Procedural: § Burden of proof §

9、 Statute of limitations · EXCEPTION: o Borrowing Statute (borrow, and apply, the shorter statute of the state where the COA arose § NY will not borrow statute if P is from NY § Ability to bring counter-claims o Substantive: § Contributory/Comparative Negligence § Statute of

10、Frauds § Parol Evidence Rule § Contribution among tortfeasors § Direct Action Statutes · Lets P sue Insurance Company of D directly o minority rule and not followed in NY Ø Law is against public policy of the forum state o Law must be really offensive to apply Ø Law is

11、Penal law o Applies only to offenses against the public § Civil Fine § Criminal Judgment Use of State Law in Federal Courts Ø Federal Court sitting in a diversity case must use the choice of law rules of the state which it sits Notice and Proof of Foreign Law Ø Courts will take judicial notice of a sister-state and federal law Ø Law of a foreign country is a fact, which must be pleaded and proved o If foreign law cannot be determined, NY will apply NY law, as long as there is no injustice 希望以上信息对您有所帮助。欲了解相关法规，请寄 email 给王榮菁律师/涉外法律顾问(上海金 茂