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#1 whitemark


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Posted 30 January 2007 - 12:28 PM

"These Terms of Service will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions or your actual state or country of residence."

What does the bolded part mean?

#2 Guest_joedolson_*

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Posted 30 January 2007 - 01:09 PM

Hopefully Bill will chime in, with his razor-sharp legal mind...

But my guess would be first) there's a typo, and it should say:

without giving effect to its conflict of laws [and?] provisions of your actual state or country of residence.

and second) it means that any laws of the physical jurisdiction in which the customer/client/etc. resides will be disregarded in favor of the relevant California state law while any case is being prosecuted within the state of California and that a change of jurisdiction would probably be required for any case originated outside California.

But I'm just guessing...and presuming that the grammar would have to be changed for it to really make any sense at all...

#3 BillSlawski


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Posted 30 January 2007 - 01:56 PM

I think that Joe is probably right that there's a typo in there, and it should be "of" rather than "or."

The whole thing, including the bolded part is an attempt to dictate a choice of law, though whether or not a court will honor and follow it is probably a matter of context and persuasion more than anything else.

Choice of Law is not jurisdiction, though the two are related concepts.

Jurisdiction means the power of a court to hear a case. This may be tied to the territorial authority of a court, so that a court in Nevada may have the jurisdiction to hear cases where the events that led to them happened in Nevada (the territory of Nevada).

Jurisdiction also involves the statutory or constitutional authority of a court to hear a case, so that for instance, a minor traffic court doesn't have the jurisdiction to hear a major felony case, though it may have the jurisdiction to hold an initial arrangement in such a case, to set bail for someone who may have just been arrested, so that their case can move up to a higher level court for further proceedings.

So Jurisdiction may be based upon a limited purpose, or set for a limited time. For example, a court may be one that you could bring an appeal to if certain requirements may be met, and one of those might be filing an appeal within a certain amount of time. Once that time period passes, that court may no longer have the jurisdiction to hear an appeal.

Courts may be limited in jurisdiction to only hear certain types of cases. So, for instance, the Court of Chancery in the State of Delaware could handle properly filed shareholders actions for some businesses, but they could not handle criminal cases against those businesses.

There may be instances where more than one court could have jurisdiction over a set of actions - so if there is an instance where a kidnapping and a murder takes place, and at some point the accused crosses over state lines, kidnapping and/or murder charges might possibly be filed in more than one state, and maybe even in federal court. The Statutes involved may be different, but the events that triggered them may be the same.

While jurisdiction often is limited to the place where the events involved happen, sometimes those events happen in a way which crosses over the borders of more than one state or country. Many states, and countries have "long arm statutes" which allow them to take jurisdiction over a case even though part of it took place elsewhere. These long arm statutes (the long arm of the law) are usually very limited in scope, and jurisdiction over a case may be a major part of the argument presented by a lawyer - does the court the case was brought in have jurisdiction over a case.

I could go on about jurisdiction, because there's a lot more to it, but I'm not going to do so.

Choice of Law is an analysis that is undertaken by a court to try to decide which law should apply to a case, and is often an issue that is separate to the one about jurisdiction. If a legal case involves someone selling something in California, and someone buying something in Arizona, the court needs to decide whether they are following California law or Arizona law. It doesn't matter if the court in in California or Arizona. A court in Arizona may attempt to follow California law in handing out a ruling.

That's what the bolded part means.

That terms of service provision may be one thing that the court looks at in making a decision as to which choice of law to follow. If there's a choice of law provision in a contract that is signed and agreed to by both parties, it may hold to that provision if it finds that the contract is binding and enforceable in full. There are sometimes disputes about the validity of a contract, though. If the terms of service are something that you are presumed to agree to, without any express indication such as signing a contract, it might be possible that a court may not hold them to apply.

If the issue involved is one that involves federal law, and the federal law is different than the state law, than a federal court may not follow the choice of law of California. The same with laws involving people who may be located in different nations, and courts in those.

If you find yourself in a dispute involving interpreting that provision, you really need to have an experienced attorney review it within the context of that case. What I've provided here is only the briefest of summaries of a complex area of the law.

#4 whitemark


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Posted 31 January 2007 - 08:19 AM

So if a non-US citizen has some dispute, it might be advantageous (in terms of protecting basic fundamental rights) for him / her to get the case heard through his / her country's judicial system?

Edited by whitemark, 31 January 2007 - 08:20 AM.

#5 BillSlawski


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Posted 31 January 2007 - 09:50 AM

I can't tell you that with any certainty at all.

Jurisdiction and choice of law are only a couple pieces of the puzzle, and there are often many other issues involved.

The venue for a legal case is usually chosen by the person bringing the case, and not by the defendant. A defendant may be able to try to challenge the jurisdication of a case, but it's unlikely that a case initiated, for instance, in a California court, will be moved to the court of another country.

#6 whitemark


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Posted 03 February 2007 - 04:05 AM

The venue for a legal case is usually chosen by the person bringing the case, and not by the defendant.

That's good to know.

Thanks Bill and Joe.

#7 Web


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Posted 07 March 2007 - 06:01 AM

First thing it means is that it's either trying to confuse users or not making an effort to make things clear.

Then, it says, 'without giving effect to its conflict of laws provisions...' which means that the above rule applies without contradicting other laws (such as those with the jurisdiction). This could be construed to mean that if such a contradiction appears, ignore the above rule.

Then, the part saying: 'without giving effect to...residence' literally means that this rule does not change where you live.

This really is a nonsensely unclear sentence which can be interpreted in many unclear ways and therefore serves as a barrier of confusion, like most law, so what's new? :)

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