WEST virginia Legislature
2017 regular session
By
[
to the Committee on the Judiciary.
A BILL to amend the Code
of West Virginia, 1931, as amended, by adding thereto a new section, designated
§2-1-3, relating to the preservation of rights guaranteed by the West Virginia
Constitution and the United States Constitution when deciding the comity of a
legal decision in a foreign country, the choice of law used for contractual
interpretations and choice of forum; exempting businesses; making legislative
findings; stating public policy; defining a term; and providing a severability
provision.
Be it enacted by the
Legislature of West Virginia:
That the Code of West
Virginia, 1931, as amended, be amended by adding thereto a new section,
designated §2-1-3, to read as follows:
ARTICLE 1. COMMON LAW.
§2-1-3. Choice of
law.
(a) The Legislature finds
that:
(1) It fully recognizes
the right of its citizens to contract freely under the laws of this state;
(2) It also recognizes
that this right may be reasonably and rationally circumscribed pursuant to the
state's interest to protect and promote rights and privileges granted to its
citizens under the Constitutions of the United States or the State of West
Virginia.
(b) As used in this
section, "foreign law, legal code or system" means any law, legal
code, or system of a jurisdiction outside of any state or territory of the
United States, including, but not limited to, international organizations and
tribunals, and applied by that jurisdiction's courts, administrative bodies, or
other formal or informal tribunals.
(c) It is the public
policy of this state that the primary factor which a court, administrative
agency, arbitrator, mediator or other entity or person acting under the
authority of state law shall consider in granting comity to a decision rendered
under any foreign law, legal code or system against a natural person in this
state is whether the decision rendered either violated or would violate any
right of the natural person in this state guaranteed by the Constitution of the
State of West Virginia or the United States Constitution or any statute or
decision under those Constitutions.
(d) If any contract,
arbitration agreement or other agreement provides for the choice of a foreign
law, legal code or system to govern its interpretation or the resolution of any
claim or dispute and if the enforcement or interpretation of the contract,
arbitration agreement or other agreement applying that choice of law provision
either resulted or would result in a violation of any right guaranteed by the Constitution
of the State of West Virginia or the United States Constitution, then it is the
public policy of this state that the primary factor in interpretation,
enforcement or application of the contract, arbitration agreement or other
agreement shall be preservation of the Constitutional rights of the natural person
in this state against whom enforcement is sought, unless otherwise directed by
state statute: Provided, That nothing
in this section shall be interpreted to limit the right of a natural person of
this state to voluntarily restrict or limit their own Constitutional rights by
contract or specific waiver consistent with Constitutional principles; however,
the language of any such contract or other waiver shall be strictly construed
in favor of preserving the Constitutional rights of the natural person in this
state.
(e) If any contract,
arbitration agreement or other agreement provides for the choice of venue or
forum outside any state or territory of the United States and if the
enforcement or interpretation of the contract, arbitration agreement or other agreement
applying that choice of venue or forum provision either resulted or would
result in a violation of any right of a natural person in this state guaranteed
by the Constitution of the State of West Virginia or the United States
Constitution, then it is the public policy of this state that, in interpreting
or construing the contract or arbitration agreement or other agreement, the
primary factor to be considered is whether it can be interpreted or construed
to preserve the Constitutional rights of the natural person in this state
against whom enforcement is sought. If a natural person of this state, subject
to personal jurisdiction in this state, seeks to maintain litigation,
arbitration, agency or similarly binding proceedings in this state and if the courts
of this state find that granting a claim of forum nonconvenience or a related
claim violates or would likely violate the Constitutional rights of the
nonclaimant in the foreign forum with respect to the matter in dispute, then it
is the public policy of this state that the claim shall be denied.
(f) Without prejudice to
any other legal right, this section does not apply to a corporation,
partnership or other form of business association.
(g) The public policies
expressed in this section apply only to actual or foreseeable violations of the
Constitutional rights of a natural person in this state from a foreign law,
legal code or system.
(h) If any provision of
this section or the application thereof to any person or circumstance is held
invalid, such invalidity shall not affect other provisions or applications of
the section which can be given effect without the invalid provision or
application, and to that end the provisions of this section are declared to be
severable.
NOTE: The purpose of this bill is
to preserve the rights of individuals guaranteed by the West Virginia
Constitution and the United States Constitution when deciding the comity of a
legal decision in a foreign country, the choice of law used for contractual
interpretations and choice of forum. The bill exempts businesses. The bill also
makes legislative findings, states public policy, defines a term and provides a
severability provision.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.