Bringing Locus Into Focus: A Choice-of-Law Methodology for CISG-based Concurrent Contract and Product Liability Claims

Abstract

The article discusses choice-of-law theories for both contractual and tort/product liability claims governed by the CISG. The underlying theme is that concurrent claims are not necessarily equivalent claims. While concurrent liability in contract and tort (namely, product liability) may be applicable or alternative remedies available, the focus of the CISG is the harmonization of rules governing international sale contracts. The article argues that factors such as the place of injury or where the damages are sustained are less relevant than the situs of the contract, based upon the view that, without privity of contract, the concurrent tort would not arise. Where the damages were sustained, in the absence of injustice, should not be determinative by resort to parochial, territorial or domestic policy-driven application of procedural rules affording jurisdiction. This paper coins a new conflict of laws phrase: the lex foci conventionis, or simply the lex foci, defined as the law of the place where CISG claims in contract and tort converge. Applying this new paradigm, a choice of law methodology is proposed for concurrent contract and product liability claims. Where gaps, exclusions or conflicts arise, dispositive factors are offered to delimit the core of the action.