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What happens when a fundamental policy collides with an unwaivable right? At bottom, that was the question before Vice Chancellor Paul A. Fioravanti, Jr. in
Swipe Acquisition Corp. v. Krauss, 2021 Del. Ch. LEXIS 14. In that case, the fundamental policy is Delaware s commitment to upholding freedom of contract: The parties to any contract, agreement or other undertaking . . . may agree in writing that the contract, agreement or other undertaking shall be governed by or construed under the laws of this State, without regard to principles of conflict of laws, or that the laws of this State shall govern, in whole or in part, any or all of their rights, remedies, liabilities, powers and duties . . . .
Monday, February 1, 2021
What happens when a fundamental policy collides with an unwaivable right? At bottom, that was the question before Vice Chancellor Paul A. Fioravanti, Jr. in
Swipe Acquisition Corp. v. Krauss, 2021 Del. Ch. LEXIS 14. In that case, the fundamental policy is Delaware s commitment to upholding freedom of contract: The parties to any contract, agreement or other undertaking . . . may agree in writing that the contract, agreement or other undertaking shall be governed by or construed under the laws of this State, without regard to principles of conflict of laws, or that the laws of this State shall govern, in whole or in part, any or all of their rights, remedies, liabilities, powers and duties . . . .