Introduced Version
House Bill 2216 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2216
(By Delegates C. Miller, Sobonya and Sumner)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §2-1-3, relating to
the preservation of rights guaranteed by the West Virginia
Constitution and the United States Constitution when deciding
the comity of a legal decision in a foreign country, the
choice of law used for contractual interpretations and choice
of forum; exempting businesses; making legislative findings;
stating public policy; defining a term; and providing a
severability provision.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §2-1-3, to read as
follows:
ARTICLE 1. COMMON LAW.
§2-1-3. Choice of Law.
_____(a) The Legislature finds that:
_____(1) It fully recognizes the right of its citizens to contract
freely under the laws of this state;
_____(2) It also recognizes that this right may be reasonably and
rationally circumscribed pursuant to the state's interest to
protect and promote rights and privileges granted to its citizens
under the Constitutions of the United States or the State of West
Virginia.
_____(b) As used in this section, "foreign law, legal code or
system" means any law, legal code or system of a jurisdiction
outside of any state or territory of the United States including,
but not limited to, international organizations and tribunals, and
applied by that jurisdiction's courts, administrative bodies or
other formal or informal tribunals.
_____(c) It is the public policy of this state that the primary
factor which a court, administrative agency, arbitrator, mediator
or other entity or person acting under the authority of state law
shall consider in granting comity to a decision rendered under any
foreign law, legal code or system against a natural person in this
state is whether the decision rendered either violated or would
violate any right of the natural person in this state guaranteed by
the Constitution of the State of West Virginia or the United States
Constitution or any statute or decision under those Constitutions.
_____(d) If a contract, arbitration agreement or other agreement provides for the choice of a foreign law, legal code or system to
govern its interpretation or the resolution of any claim or dispute
and if the enforcement or interpretation of the contract,
arbitration agreement or other agreement applying that choice of
law provision either resulted or would result in a violation of any
right guaranteed by the Constitution of the State of West Virginia
or the United States Constitution, then it is the public policy of
this state that the primary factor in interpretation, enforcement
or application of the contract, arbitration agreement or other
agreement shall be preservation of the constitutional rights of the
natural person in this state against whom enforcement is sought,
unless otherwise directed by state statute. Nothing in this
section limits the right of a natural person of this state to
voluntarily restrict or limit their own constitutional rights by
contract or specific waiver consistent with constitutional
principles. The language of any such contract or other waiver
shall be strictly construed in favor of preserving the
constitutional rights of the natural person in this state.
_____(e) If any contract, arbitration agreement or other agreement
provides for the choice of venue or forum outside any state or
territory of the United States and if the enforcement or
interpretation of the contract, arbitration agreement or other
agreement applying that choice of venue or forum provision either
resulted or would result in a violation of any right of a natural person in this state guaranteed by the Constitution of the State of
West Virginia or the United States Constitution, then it is the
public policy of this state that, in interpreting or construing the
contract or arbitration agreement or other agreement, the primary
factor to be considered is whether it can be interpreted or
construed to preserve the constitutional rights of the natural
person in this state against whom enforcement is sought. If a
natural person of this state, subject to personal jurisdiction in
this state, seeks to maintain litigation, arbitration, agency or
similarly binding proceedings in this state and if the courts of
this state find that granting a claim of forum nonconveniens or a
related claim violates or would likely violate the constitutional
rights of the nonclaimant in the foreign forum with respect to the
matter in dispute, then it is the public policy of this state that
the claim shall be denied.
_____(f) Without prejudice to any other legal right, this section
does not apply to a corporation, partnership or other form of
business association.
_____(g) The public policies expressed in this section apply only
to actual or foreseeable violations of the constitutional rights of
a natural person in this state from a foreign law, legal code or
system.
_____(h) If any provision of this section or the application thereof to any person or circumstance is held invalid, such
invalidity shall not affect other provisions or applications of the
section which can be given effect without the invalid provision or
application. To that end, the provisions of this section are
declared to be severable.
NOTE: The purpose of this bill is to preserve the rights of
individuals guaranteed by the West Virginia Constitution and the
United States Constitution when deciding the comity of a legal
decision in a foreign country, the choice of law used for
contractual interpretations and choice of forum. The bill exempts
businesses. The bill also makes legislative findings, states public
policy, defines a term and provides a severability provision.
This section is new; therefore, it has been completely
underscored.