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Unpublished Paper
Context Matters--What Lawyers Say About Choice of Law Decisions in Merger Agreements
ExpressO (2014)
  • Juliet P Kostritsky, Case Western Reserve
Abstract
ABSTRACT: The study of choice of law provisions in merger agreements yields various theories as to how much thought parties put into them, and what factors influence such decisions. Eisenberg and Miller found a shift to New York law and other scholars later hypothesized that parties specify New York law rather than Delaware law because New York law is more formalistic. However, a study of 343 merger agreements, consisting of 15 lawyer interviews and a survey sent to 812 lawyers, suggests differently. First, there is no shift from Delaware to New York. Second, a desire for formalistic law is not the motivating factor for lawyers. Choice of law provisions in merger agreements are motivated by a multitude of contextual factors. Further the clients' intent for choice of law is unclear due to the way such provisions are drafted in the context of a principal agent relationship.
Keywords
  • choice of law,
  • formalism,
  • survey,
  • empirical,
  • lawyers,
  • contracts
Publication Date
August 22, 2014
Citation Information
Juliet P Kostritsky. "Context Matters--What Lawyers Say About Choice of Law Decisions in Merger Agreements" ExpressO (2014)
Available at: http://works.bepress.com/juliet_kostritsky/25/