It is one of the pinnacle theories of conflict of laws and when first introducing students to it, they almost invariably respond glassy-eyed. Renvoi has an unlimited ability to surprise parties and courts alike. It is best excluded, either by Statute, or by the parties, but frankly to be on the safe side: always and everywhere best by both. (Lest there are well considered arguments not to do so in a specific instance. As readers of my book know, the Brussels I Recast provisions on renvoi for choice of court (complicating less fori prorogati) is not such an instance: Handbook 2016, p.128-129, Heading 184.108.40.206.2).
At issue in Dankor [Dancor Construction, Inc. v. FXR Construction, Inc., 2016 IL App (2d) 150839] was the choice of court and governing law clause cited by the court at 44:
“The parties agree that this agreement was executed in Kane County, Illinois and shall be governed by the law of the State of Illinois. Any claims, lawsuits, disputes or claims arising out of or relating to this agreement shall be litigated in Kane County, Illinois.”
This clause could be a boilerplate or midnight clause except those routinely do exclude renvoi. ‘The law of the State of Illinois’ in the clause would then be followed by ‘excluding its choice of law rules’ or something of the kind. Why it was dropped here is entirely unclear. As Clifford Shapiro writes ‘So what happens when an Illinois general contractor fires a New York subcontractor who was working on a New York project under a subcontract that required Illinois law to apply and litigation to take place in Illinois? Unfortunately for litigants, what can happen is nearly three years of jurisdictional litigation in both New York and Illinois, and then dismissal of the Illinois case less than 60 days before trial with an order directing the case to be re-filed in New York.’
As the court notes (at 69) choice of court and choice of governing law are separate issues (for that reason they are als best dealt with in clearly separated contractual clauses). Relevant precedent for the validity of the former is Rieker 378 Ill. App. 3d 77, 86 (2007). Applying Rieker, and following Section 187(2) of the Restatement (Second) of Conflict of Laws, the Court held (reference is best made to Clifford’s summary or to the judgment itself) that New York law applied to the validity of the clause, leading to its being void: New York law mandatorily prohibits application of another State’s law or litigation outside of the State for New York construction projects (Illinois incidentally has a mirror provision).
Need one say more? Renvoi is always best excluded. It would not necessarily have made this clause enforceable: ordre public discussions could always still be raised. However it sure as anything would have made the validity of the clause much more likely.
(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 1, Heading 1.4).