While transaction agreements can vary widely from deal to deal, they usually contain surprisingly similar “boilerplate” provisions that receive little attention during negotiations but significant attention in the event of a later dispute. Sophisticated parties with ties to multiple states may have some flexibility in choosing the governing law of the contract and the jurisdiction where disputes arising under the contract will be resolved. When it comes to the so-called “boilerplate,” how much does the selection of one state over another matter?
This is the first installment of three articles that explore the manner in which provisions may be handled differently by courts depending on whether the underlying contract is governed by California, Delaware, New York or Illinois law. This installment addresses the fundamental issue of how the parties’ contract will be interpreted and to what extent courts can go beyond the words of the parties’ written agreement to give effect to their intentions.