Vol 7 No 1 - Roger Williams University School of Law

Other Substantive IssuesThere are, of course, controversial provisions within UCITAthat will have special significance on the international level. Forexample, “hidden” within the lengthy act are two provisions ofprofound consequence for all transactions: those addressing choiceof law and choice of forum issues.145 Again, the expansive grant ofparty autonomy in these areas, and whether those rules areappropriate, is the subject of much ongoing debate—both withinthe context of UCITA146 and on a more generalized basis aswell.147 Obviously, before such rules are raised to theof software licensing, that law consists of three interlocking components:contract, intellectual property, and increasingly, the law-like architecturalfeatures and protocols of that domain.Id.145. UCITA §§ 109, 110.146. See, e.g., Amos Shapiro, Territorialism, National Parochialism, Universalismand Party Autonomy: How Does One Square the Choice-of-Law Circle?, 26 Brook. J.Int’l L. 199, 205 (2000) (noting that “a choice-of-law methodology that aspires topromote the idea of objective fair notice ought to refrain from designating as applicablea system of law that clearly has no appropriate relationship with a party to thelitigation”); William J. Woodward, Jr., Contractual Choice of Law: Legislative Choice inan Era of Party Autonomy, 54 SMU L. Rev. 697 (2001). At least one author appears tobelieve that in the case of applicable law, uniformity is nigh impossible. Ted Janger,Jurisdictional Competition and the Dim Prospects for Uniformity, 26 Brook. J. Int’l L.187, 196 (2000).Thus a law of the licensor rule is unlikely to become a uniform choice-of-lawrule under either a decentralized or uniform law approach, and is likely tocreate an incentive towards a substantive race to the bottom if it is adoptedas a mandatory rule of international law. [The] law of the licensee rule wouldnot appear to solve the problem. The same pressures that would likely defeatuniform adoption of a UCITA type rule would work in reverse with regard toa law of the licensee rule.Id.At the 1997 meeting, discussions on choice of law were curtailed when theReporter agreed to reexamine whether the parties to a contract may choose the law of ajurisdiction with no connection to the transaction as the law governing the transaction,as well as the issue of what constitutes a manifestation of assent to the law of a givenjurisdiction. At the 1998 ALI Annual Meeting discussing Article 2B, the membershipappeared to be equally divided over a sense-of-the-house motion to delete thissubsection and the choice of law provisions in their entirety, leaving the issue of theUCC’s contractual choice-of-law provision to be resolved by the Article 1 DraftingCommittee. The decision of the ALI to withdraw from the process precluded anyfurther ALI action on these provisions.147. The changes to the choice of law provisions contained in proposed revisions toArticle 1 of the Uniform Commercial Code have provoked a great deal of discussion.See Woodward, supra note 146; Fred H. Miller, Intrastate Choice of Applicable Law inthe UCC, 54 SMU L. Rev. 525 (2001); Amelia H. Boss, The Jurisdiction of Commercial