Conflicts of Law Issues
Arbitration | SubstantiveWe advise on choice of law issues in international arbitration, including applicable substantive law, procedural law, and the law governing the arbitration agreement.
Overview
Navigating Multiple Legal Systems
International arbitrations involve multiple legal systems. MC Law's Conflicts of Law practice helps clients navigate choice of law questions affecting substantive rights, procedural matters, and arbitration agreement validity.
Applicable Substantive Law
Determining the law governing the merits is fundamental. We analyze choice of law clauses, apply institutional rules and conflicts principles, and identify the substantive law governing parties' rights and obligations. We address situations where different laws apply to different issues.
Law of the Arbitration Agreement The arbitration agreement may be governed by different law than the main contract. We analyze what law governs agreement formation, validity, scope, and interpretation. We address separability doctrine and its implications. Procedural Law The lex arbitri—the law of the arbitration seat—governs procedural matters. We advise on how seat selection affects available procedures, judicial supervision, and award review. We help clients choose seats with favorable procedural frameworks. Mandatory Rules Certain rules apply regardless of party choice. We identify mandatory rules that may affect arbitration, including public policy limitations, consumer protections, and regulatory requirements. We address how mandatory rules interact with party autonomy. Transnational Law Parties may choose non-national legal standards. We advise on selection and application of transnational principles, lex mercatoria, UNIDROIT Principles, and other non-state law. We address hybrid approaches combining national and transnational law. Multi-Jurisdictional Coordination Complex disputes may involve proceedings in multiple jurisdictions. We coordinate choice of law positions across forums and ensure consistent treatment of legal issues.Our Services
international_arbitration
Federal registration and validity opinions
arbitration_agreements
Federal registration and validity opinions
jurisdictional_issues
Federal registration and validity opinions
Licensing & Transactions
Negotiate and draft license agreements
DMCA Services
Takedown notices and counter-notices
Enforcement
Cease and desist through litigation
Fair Use Analysis
Evaluate fair use defenses and risks
Music & Entertainment
Industry-specific copyright matters
Frequently Asked Questions
The law governing the arbitration agreement may differ from the substantive law of the contract. It is typically determined by the parties' express choice, the law of the seat, or the law with the closest connection to the agreement.
Tribunals apply the law chosen by the parties, or absent a choice, use conflict of laws rules to identify the applicable law. The approach varies depending on whether the tribunal applies the law of the seat or uses a direct method.
The law of the seat governs the procedural framework of the arbitration, the validity of the arbitration agreement, and the grounds for setting aside the award. It provides the legal backbone for the entire proceeding.
Yes, it is common for different laws to apply to the arbitration agreement, the merits of the dispute, procedural matters, and evidence. This phenomenon, called dépeçage, requires careful analysis of each issue's governing law.
Mandatory rules of the seat, the place of enforcement, or the law governing the substance may override party autonomy. Tribunals must consider applicable mandatory rules, such as antitrust or sanctions laws, regardless of the parties' choice of law.
Fair use is a defense that permits limited use of copyrighted material without permission. Courts consider four factors: the purpose and character of use (commercial vs. educational, transformative vs. copying), the nature of the copyrighted work, the amount used, and the effect on the market. Fair use is highly fact-specific.
For works created today by individual authors, copyright lasts for the life of the author plus 70 years. Works made for hire and anonymous/pseudonymous works are protected for 95 years from publication or 120 years from creation, whichever is shorter. Older works may have different terms.
Yes, software code is protected by copyright as a literary work. Both source code and object code can be registered. However, copyright protects the expression of ideas, not the underlying functionality—patent protection may be more appropriate for novel methods and processes implemented in software.
Our virtual legal services offer streamlined, cost-effective solutions for common copyright needs. Services like copyright registration, assignment agreements, and DMCA takedowns are available online with fixed, transparent pricing. You get the quality of a top IP firm with the convenience of digital delivery.
Related Matters
Represented streaming platform in landmark DMCA safe harbor case. Successfully defended client's safe harbor status while obtaining injunctive relief against repeat infringers, resulting in dismissal of $500M damages claim.
Prosecuted copyright infringement claims on behalf of professional photographers whose work was used without authorization. Secured significant damages award and implementation of improved licensing procedures.
Enforced copyright and trade dress rights in mobile game against clone applications. Obtained preliminary injunction and permanent removal of infringing apps from major app stores worldwide.
Cutting-edge case addressing use of copyrighted music in AI training datasets. Negotiated comprehensive licensing framework that allows continued AI development while protecting rightsholders' interests.
Prosecuted claims against former executive who copied proprietary source code to competitor. Established ownership under work-for-hire doctrine and obtained injunction plus damages for willful infringement.
Represented academic publisher in enforcement action against site hosting pirated textbooks. Implemented systematic takedown program and pursued contributory infringement claims against operators.
Get in Touch
Connect with our copyright team to discuss your matter
Practice Contacts
Michael Roberts
Sarah Kim
