Choice of Law/Jurisdiction

CHOICE OF LAW/JURISDICTION

If the contract is to be performed in Nevada, it is NSHE policy that the contract be subject to Nevada law. It is preferable to eliminate the clause altogether, than to agree to have the laws of another state apply to the contract.

If the contract is to be performed outside the State of Nevada, NSHE would prefer that Nevada law apply to the contract, but has no objection if the law of the state where the contract is performed be applicable to the contract.

Example 1-Below is a compromise reached between NREL and DRI. Brooke approved the modification as it provided a neutral clause.

NREL Response #2 – Clause 2 Subcontract Issues and Disputes (Sept 2007)

NREL declines to modify Clause 2 as requested by DRI. Instead, NREL will accommodate DRI’s request by modifying the clause to be neutral with respect to venue and governing law, but will retain Federal court jurisdiction unless the requirements for Federal jurisdiction are not presented.

The following modifications to Clause 2 Subcontract Issues and Disputes (SEPT 2007), including modification to the clause title are acceptable to NREL.

Clause 2. SUBCONTRACT ISSUES AND DISPUTES (SPECIAL – DRI) (JULY 2008)

The Subcontract Issues and Disputes Clause is modified by deleting paragraphs B and C in their entirety and replacing them with the following paragraphs B and C. Other terms and conditions of the Subcontract Issues and Disputes Clause shall be retained as written.

B.The parties agree that the appropriate forum for resolution of any dispute or claim pertaining to this subcontract shall be in a court of competent jurisdiction as follows:

1.Subject to paragraph (B)(2) of this clause, any such litigation shall be brought and prosecuted exclusively in Federal District Court.

2.Provided, however, that in the event that the requirements for jurisdiction in any Federal District Court are not presented, such litigation shall be brought in a State court of competent jurisdiction.

C.Any substantive issue of law in such dispute, claim, or litigation shall be determined in accordance with the body of applicable Federal law relating to the interpretation and application of clauses derived from Federal Acquisition Regulations and the Department of Energy Acquisition Regulations that implement and supplement the FAR. If there is no applicable Federal law, the law of the State forum shall apply in the determination of such issues. Conflict of law provisions shall not determine applicable governing law. Nothing in this clause shall grant to the Subcontractor by implication any statutory rights or remedies not expressly set forth in this subcontract.