10.4 CHOICE OF LAW
Traditional contract choice of law rules apply to employment contracts. If the parties do not specify the law to be applied to interpret a contract, the nature, validity, and interpretation of the contract are generally governed by
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the law of the state where the contract was made. 102 A contract is made in the state where the final act necessary to make the contract binding takes place. 103 However, when the parties form a contract in one state but fully perform the contract in another state, the law of the state of performance will apply instead of the law of the state of contract formation. 104 On the other hand, when the performance of the contract takes place in multiple states, the interpretation will be governed by the law of the place of formation. 105 Thus, in an employment case litigated in Virginia, one should expect a restrictive covenant to be interpreted by the law of the state of performance unless the employment will be performed in multiple states, in which case it will likely be governed by the law of the place where the contract was formed. 106
The agreement itself may, of course, specify which law governs. The parties' choice ordinarily will be given effect. 107 The forum state, however, will
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not enforce contracts that contravene its public policy. 108 Courts in Virginia have rejected arguments that enforcement of covenants under more favorable foreign law necessarily contravenes Virginia public policy. 109
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Notes:
[102] Nguyen v. CNA Corp., 44 F.3d 234, 237 (4th Cir. 1995); Winston v. Academi Training Ctr., Inc., No. 1:12- cv-767, 2013 U.S. Dist. LEXIS 34850, 2013 WL 989999 at *2 (E.D. Va. Mar. 13, 2013); Federal Ins. Co. v. New Coal Co., 415 F. Supp. 2d 647 (W.D. Va. 2006); Ryder Truck Rental, Inc. v. UTF Carriers, Inc., 790 F. Supp. 637 (W.D. Va. 1992); Dreher v. Budget Rent-A-Car Sys., Inc., 272 Va. 390, 634 S.E.2d 324 (2006); Lexie v. State Farm Mut. Auto. Ins....
